Forceful Removal Of 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: Delhi High Court
The Delhi High Court observed that 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.
A Division Bench of Justice Navin Chawla and Justice Renu Bhatnagar observed:” Merely because the wife has decided to stay back in India and has got the minor child admitted to a school here, would not, therefore, make the minor child an ordinary resident of Delhi (India). As noted hereinabove, such forceful removal/detention, even by a parent, at a place that is not the natural habitation of the minor child, would not render such other place the ordinary place of residence of the minor child.”
Advocate Jai Sahai Endlaw appeared for the Appellant, while Advocate Prabhjit Jauhar represented the Respondent.
Brief Facts
The parties, both permanent residents of the United States and holders of long-term resident status, had been residing in the US continuously since after their marriage. Their minor child, a US citizen by birth, was also living in the United States and attending school there.
During a planned short vacation, the parties travelled together to India along with the child. Shortly after arrival, the Petitioner, with assistance from airport authorities, separated the child from the other parent and decided not to return to the US. The return tickets for all three had been pre-booked, but the Petitioner unilaterally chose to remain in India and subsequently initiated various legal proceedings, including a guardianship petition seeking sole custody under the Guardians and Wards Act.
The Respondent, upon returning to the United States, approached the competent court in that jurisdiction. The US court declined to pass ex parte relief but ultimately issued a detailed parenting order granting residential custody and sole decision-making rights to the Respondent, with scheduled visitation and parenting time for the Petitioner. The order also directed that the minor child be returned to the United States.
Despite the US court’s order, the Petitioner filed a guardianship petition before a Family Court in India, claiming that the minor child was now “ordinarily residing” in Delhi. The Family Court rejected the petition under Order VII Rule 11 CPC for lack of territorial jurisdiction, holding that the minor had not established ordinary residence in India.
The Petitioner filed an appeal against this order, and the Respondent filed a writ petition before the High Court seeking the return of the minor child in compliance with the foreign custody order.
Reasoning of the Court
The Court examined the meaning and applicability of “ordinary residence” under Section 9 of the Guardians and Wards Act and concluded that unilateral removal cannot found jurisdiction.
The Court observed, “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 noted that while it was correct that for purposes of invoking jurisdiction under Section 9 of the G&W Act, it is not necessary for the child to be a permanent resident of the place, and even a temporary residence would suffice. “Such temporary residence should not be illegal or forceful. The court, on an overall reading of the petition shall have to determine whether the child can be said to be ordinarily residing within its jurisdiction”, the Court added.
The Court observed, “In the present case, on a bare reading of the petition filed by the wife under the G&W Act, and the surrounding circumstances that are admitted by her, the minor child could not be said to be ordinarily residing within the jurisdiction of the learned Family Court.”
On the factual aspect of residence, the Court further noted that the parties had visited India only for a short stay and had booked their return tickets for all three of them, and if the wife always had an intention of staying back in India on her return, at least, she did not manifest this to the husband before their departure from the USA.
The Court clarified, “Merely because the wife has decided to stay back in India and has got the minor child admitted to a school here, would not, therefore, make the minor child an ordinary resident of Delhi (India). As noted hereinabove, such forceful removal/detention, even by a parent, at a place that is not the natural habitation of the minor child, would not render such other place the ordinary place of residence of the minor child.”
The Court also considered the child’s welfare and the nature of the foreign court’s parenting plan, stating, “The Superior Court in Arizona has, at least prima facie, considered the welfare of the minor child and has passed directions for the return of the minor child to the USA and for the joint parenting of the minor child, which we find to be just and proper in the facts of the present case, and see no reason to disagree with the same.”
“In our opinion also, the directions passed are in the best interest and welfare of the minor child, wherein the minor child will get the love and affection of both the parents…”, the Bench added.
The Court held that the Family Court in India lacked jurisdiction to entertain the guardianship petition, as the child was not ordinarily residing in Delhi. It further held that the child’s continued presence in India resulted from a unilateral act that could not override lawful custody directions issued by the competent court in the United States.
Consequently, the Court dismissed the appeal, granting the Petitioner liberty to return abroad with the minor child by a fixed date.
Cause Title: Neutral Citation: 2025:DHC:4483-DB)
Appearance:
Appellant: Advocates Jai Sahai Endlaw, Charu Dalal, Choudhary Amit Bassoya, Simran Johar
Respondent: Advocates Prabhjit Jauhar, Aadarsh Kothari, Sahej Kataria
