Introduction:

In Writ Petition No. 25901 of 2024 (2026 LiveLaw (Kar)), the Karnataka High Court, through Justice Lalitha Kanneganti, delivered a significant ruling in a protracted child custody dispute involving transnational dimensions. The case concerned a conflict between estranged parents over the custody of their minor son, with the central issue revolving around jurisdiction under Section 9 of the Guardians and Wards Act, 1890. While the father sought to retain custody of the child in India, asserting that the child was ordinarily residing in Bengaluru, the mother contended that the courts in India lacked jurisdiction as the child’s habitual and ordinary residence was in the United States, specifically in New Jersey. The dispute arose after the family, which had relocated to the United States in 2014, returned to India temporarily in 2019 for a religious ritual, following which the father chose to remain in India with the child, while the mother returned to the United States. The litigation spanned multiple proceedings, including an ex parte custody order passed by the Superior Court of New Jersey and subsequent proceedings before Indian courts. The High Court was thus called upon to determine whether the unilateral retention of the child in India could confer jurisdiction upon Indian courts and, more importantly, to decide the issue of custody in light of the paramount consideration of the welfare of the child.

Arguments of the Father:

The father advanced a detailed case seeking recognition of his custody over the minor child, primarily contending that the child was presently residing in India and had developed a stable life there. He argued that the child had been living with him in Bengaluru for several years, attending school, forming social bonds, and integrating into the local environment. According to the father, this established a sufficient basis for treating India as the child’s place of ordinary residence, thereby conferring jurisdiction upon Indian courts under Section 9 of the Guardians and Wards Act. He further contended that the child was more comfortable and secure in India, surrounded by extended family and a familiar cultural setting. The father emphasized that the child’s welfare must be assessed in terms of his present circumstances rather than past residence, and that disrupting the child’s settled life by sending him back to the United States would cause emotional and psychological harm. The father also relied on the fact that the child was born in India and had strong roots in the country, which, according to him, reinforced the claim of India being the appropriate jurisdiction. Addressing the ex parte order passed by the Superior Court of New Jersey, the father argued that such an order should not be automatically enforced in India, particularly when it was passed without his participation and without considering the child’s current circumstances. He also contended that the mother’s actions, including taking the child from school in 2025 without his knowledge, demonstrated her disregard for due process and stability. The father further argued that the Family Court at Bengaluru had rightly exercised jurisdiction and that its findings regarding the child’s residence should not be disturbed. In essence, the father sought to frame the issue as one of the child’s present welfare and stability, rather than a rigid application of jurisdictional principles based on past residence.

Arguments of the Mother:

The mother, on the other hand, strongly contested the jurisdiction of Indian courts and argued that the child’s ordinary residence was unequivocally in the United States. She submitted that the family had relocated to New Jersey in 2014 and had been residing there continuously until 2019, when they temporarily travelled to India for a religious function. According to her, the decision of the father to remain in India with the child was unilateral and without her consent, and therefore could not alter the child’s ordinary residence. The mother emphasized that jurisdiction under Section 9 of the Guardians and Wards Act is determined by the place where the child ordinarily resides, and not by mere physical presence. She argued that allowing a parent to create jurisdiction by wrongfully retaining a child in a different country would encourage forum shopping and undermine the rule of law. The mother also highlighted that she had obtained an ex parte order from the New Jersey court directing the return of the child, which reflected the recognition of the United States as the appropriate forum for adjudicating custody disputes. She further contended that she had a stable and flourishing career in the United States and was in a position to provide a better future for the child in terms of education and overall development. The mother also pointed out the emotional toll of the prolonged litigation, stating that she had been compelled to move from “pillar to post” for several years in her efforts to regain custody of her son. Importantly, the mother relied on the Supreme Court’s decision in Lahari Sakhamuri v. Sobhan Kodali, which emphasized that the welfare of the child must be the paramount consideration and that courts should be cautious in cases involving international child abduction or retention. She argued that uprooting the child from his established environment in the United States due to the father’s unilateral actions would be contrary to the child’s best interests. The mother thus urged the High Court to recognize the United States as the child’s place of ordinary residence and to direct the return of the child to her custody.

Judgment of the Court:

The Karnataka High Court, after a comprehensive analysis of the facts and applicable legal principles, ruled in favour of the mother and held that the child’s ordinary residence was in the United States, thereby negating the jurisdiction of Indian courts. Justice Lalitha Kanneganti, delivering the judgment, emphasized that the concept of “ordinary residence” must be understood in terms of the child’s habitual and settled environment, rather than mere physical presence in a particular location. The Court categorically held that jurisdiction cannot be artificially created by a parent through unilateral relocation or retention of the child in a different place. It observed that the family had moved to the United States in 2014 and had been residing there for several years, and that their visit to India in 2019 was temporary in nature. The father’s decision to remain in India with the child, ostensibly due to his father’s illness, did not alter the child’s ordinary residence, particularly when the mother had not consented to such an arrangement. The Court found fault with the Family Court’s reasoning, noting that it had erroneously treated the child’s presence in India as sufficient to establish jurisdiction, without considering the broader context of the child’s life and residence. Relying on the principles laid down in Lahari Sakhamuri, the Court reiterated that the welfare of the child is the paramount consideration in custody matters, and that such welfare is best served by maintaining continuity in the child’s social, academic, and familial environment. The Court observed that uprooting the child from his established life in the United States would be detrimental to his well-being. It also took into account the child’s own expressed preference to be with his mother, as recorded during an interaction in chambers. The Court expressed concern over the practice of unilateral relocation and the resulting jurisdictional conflicts, noting that such actions often lead to forum shopping and prolonged litigation, with the child becoming the ultimate victim. In a poignant observation, the Court remarked that custody disputes of this nature are not merely legal battles between parents but have profound emotional consequences for the child, who becomes a “silent sufferer.” The Court also addressed the broader implications of compelling the mother to remain in India, noting that such an expectation would unjustly restrict her personal and professional freedom. It observed that the father’s conduct in retaining the child in India effectively amounted to pressurizing the mother to abandon her career and settle in India, which was neither fair nor lawful. Accordingly, the Court directed the father to return the custody of the child to the mother in the United States by May 2026, after the completion of the academic year. It further clarified that the father retains the right to seek custody or visitation, but must do so before the competent courts in the United States, which have proper jurisdiction over the matter. As an interim arrangement, the Court granted the father visitation rights, allowing him to visit the child in the United States every six months and to have exclusive custody during such visits. The judgment thus strikes a careful balance between jurisdictional principles and the welfare of the child, while also addressing the broader concerns of fairness and parental rights.