Introduction:

In a critical judgment that underscores the limits of territorial jurisdiction in child custody matters, the Delhi High Court in Sunaina Rao Kommineni v. Abhiram Balusu (MAT.APP.(F.C.) 135/2024) dealt with the question of whether a parent who forcibly removes a minor child and brings them to a new location can subsequently seek guardianship in a court within that jurisdiction. A division bench of Justices Navin Chawla and Renu Bhatnagar emphatically ruled that such a forced relocation does not satisfy the requirement of “ordinary residence” under Section 9 of the Guardians & Wards Act, 1890, thereby disallowing the parent from invoking the jurisdiction of the Family Court in Delhi. The appellant, a mother, had challenged a family court order that dismissed her guardianship petition for lack of territorial jurisdiction. The child in question, a US citizen, had resided in the United States with both parents for five years until the mother unilaterally retained the child in India. The father then filed a Habeas Corpus petition seeking the child’s production and return to the US. The Family Court found that the child had only stayed in Delhi for 113 days before the petition’s filing and thus could not be deemed to be “ordinarily residing” in Delhi. The mother contended that her current residence in Delhi should suffice for jurisdiction and added that the child’s schooling in Delhi further established residence. However, the High Court ruled otherwise, emphasising that jurisdiction under Section 9 of the Guardians & Wards Act hinges on the minor’s place of ordinary residence and not on the unilateral actions of a parent.

Arguments:

The appellant’s counsel argued that Section 9 did not mandate permanent residence and that even temporary residence should suffice if that is where the minor currently resides. They asserted that the mother and the child had begun living in Delhi and that the child had been enrolled in school, making the residence substantial enough to invoke the Family Court’s jurisdiction. The counsel relied on judicial precedents that allowed for temporary residence to form a basis for jurisdiction, provided that such residence was not momentary or transient. However, they did not adequately counter the respondent’s argument that the child’s relocation was both forceful and in contravention of ongoing custody discussions abroad.

The respondent, the father, vehemently opposed the appeal, stating that the child had been unlawfully retained in India. He argued that the child’s original residence was in the US and that the mother’s action in keeping the child in India without his consent amounted to illegal detention. He further asserted that such forceful action should not be rewarded with the benefit of establishing jurisdiction in Indian courts. Citing the case of Lahari Sakhamuri v. Sobhan Kodali (2019), he underscored that a parent cannot remove a child from one jurisdiction and then claim that the new location should be considered the minor’s ordinary residence. In Paul Mohinder Gahun v. Selina Gahun (2006), it was similarly held that a residence by compulsion, even if prolonged, does not translate into “ordinary residence.”

Judgement:

The Court sided with the father’s interpretation and dismissed the mother’s appeal. The bench clarified that while Section 9 does allow for temporary residence to satisfy jurisdictional requirements, this provision cannot be abused through forceful removal or illegal retention of a minor. The judgment stated, “The forceful removal of a minor child from his original place of residence and shifting him to a new residence will not make him an ordinary resident of the new place.” The Court also pointed out that merely admitting the child to a school in Delhi does not make Delhi the child’s ordinary place of residence, especially when the relocation was without the other parent’s consent. It further reiterated that the place of habitual residence before the unlawful removal remains relevant for deciding jurisdiction. Thus, the Court dismissed the guardianship petition filed by the mother and directed that appropriate steps be taken to ensure the child’s return.