New Delhi, May 28, 2025 — The Delhi High Court has dismissed a custody petition filed by a mother seeking sole guardianship of her minor child, holding that a child’s residence established through unilateral and forceful removal by one parent cannot confer jurisdiction upon Indian courts. The Court emphasized that under Section 9 of the Guardians and Wards Act, 1890, a court must have jurisdiction where the minor “ordinarily resides,” which cannot arise through such forceful action.
The Division Bench of Justice Navin Chawla and Justice Renu Bhatnagar was hearing two connected matters: a family court appeal filed by the mother challenging the rejection of her guardianship petition, and a habeas corpus petition filed by the father seeking the return of the child to the United States.
Background
The parties, both permanent residents of Arizona, USA, were married in 2013 and had been living in the U.S. since then. Their son, born in 2017 in Arizona, is a U.S. citizen by birth. In November 2022, the family traveled to India for a vacation with return tickets booked for January 9, 2023. Upon arrival in Delhi, the mother unilaterally took the child away from the father with airport security’s assistance.
Subsequently, the mother filed a series of proceedings in India, including a domestic violence case and a guardianship petition under Sections 7, 8, 9, and 25 of the Guardians and Wards Act before the Family Court in Saket, Delhi. The Family Court rejected the petition on April 15, 2024, citing lack of territorial jurisdiction on the ground that the minor was not “ordinarily residing” in Delhi.
Legal Arguments
The father argued that the child was born and brought up in Arizona, was enrolled in school there, and had never resided in Delhi except for the short vacation. He relied on the order passed by the Superior Court of Arizona on March 10, 2023, which granted him sole legal custody of the child and directed the mother to return the child to the U.S. by March 17, 2023.
He contended that the mother’s action of keeping the child in India against the original plan did not confer jurisdiction on Indian courts. It was emphasized that the Arizona court’s custody decision was passed after assessing the child’s best interest and provided for a joint parenting plan.
The mother, represented by counsel, contended that the child had since been enrolled in school in Delhi and had settled well in the local environment. She argued that the Family Court in Delhi had jurisdiction and relied on Supreme Court judgments including Ruchi Majoo v. Sanjeev Majoo and Nithya Anand Raghavan v. State (NCT of Delhi) to contend that Indian courts could independently consider the child’s welfare, irrespective of foreign custody orders.
Court’s Observations
The Delhi High Court upheld the Family Court’s finding, holding that the child’s removal from Arizona and continued stay in Delhi were unilateral actions by the mother, and did not amount to “ordinary residence” within the meaning of Section 9 of the Guardians and Wards Act.
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 relied on precedents including Lahari Sakhamuri v. Sobhan Kodali and Paul Mohinder Gahun v. Selina Gahun to conclude that jurisdiction cannot be conferred by way of unilateral and wrongful retention of the child.
Judgment and Directions
Dismissing the mother’s appeal and allowing the father’s habeas corpus petition, the Court directed as follows:
- The mother may return to Arizona, USA, along with the child by July 1, 2025, and must inform the father of her decision by June 15, 2025.
- The father shall bear travel expenses and pay monthly maintenance of USD 2000 for the mother and child.
- If the mother refuses to return, she must hand over custody of the child to the father before the Registrar General of the High Court on July 2, 2025.
- In case of non-compliance, the father may seek police assistance to secure custody.
The Court concluded:
“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).”
The matter was disposed of with no order as to costs.
