Court’s Decision
The Delhi High Court dismissed the wife’s appeal against the Family Court’s rejection of her guardianship petition for lack of jurisdiction and allowed the husband’s habeas corpus petition, directing the return of the minor child to Arizona, USA. The Court held:
“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.”
The Court upheld the Arizona Court’s parenting order and concluded that the child’s best interests lay in returning to the USA, where the child was born, raised, and lawfully domiciled.
Facts
- The parties married in 2013 and lived in Arizona, USA, since then.
- A male child was born in 2017 in the USA and lived there until the family came to India on 25.11.2022 for a vacation.
- The wife took custody of the child with the help of airport security upon arrival in India and refused to return to the USA.
- She filed a writ for protection and subsequently initiated DV and custody proceedings in Delhi.
- The husband moved the Arizona Court for custody. The Arizona Court ordered the child’s return and prescribed joint parenting arrangements.
- The wife defied the Arizona Court’s directions and instead filed a guardianship petition under the Guardians and Wards Act (G&W Act) before the Family Court, Saket, Delhi, which was dismissed for lack of jurisdiction.
Issues
- Whether the minor child can be said to “ordinarily reside” in Delhi to invoke jurisdiction under Section 9 of the G&W Act.
- Whether the High Court should exercise its writ jurisdiction in a habeas corpus petition to enforce a foreign custody order.
- What is in the best interest of the minor child.
Petitioner’s Arguments (Wife)
- The minor child had been admitted to a Delhi school and had become well-settled.
- Courts in India should independently determine the child’s welfare, regardless of foreign court orders.
- The child and mother had suffered domestic violence in the USA.
- Cited Ruchi Majoo to argue “ordinary residence” includes even temporary residence.
- Contended that the question of jurisdiction under Section 9 G&W Act is a mixed question of law and fact and cannot be summarily rejected under Order VII Rule 11 CPC.
- Relied on Nithya Anand Raghavan and Nirmala v. Kulwant Singh to assert independent jurisdiction of Indian courts in custody matters.
Respondent’s Arguments (Husband)
- The child was an American citizen, born and raised in Arizona, and the parties held Green Cards.
- Their trip to India was a vacation with return tickets booked.
- The wife’s removal of the child was unilateral and without consent.
- The Arizona Court had issued a detailed parenting order after hearing both parties.
- Cited Lahari Sakhamuri, Surinder Kaur Sandhu, Yashita Sahu, and Rohith Tammana Gowda to argue that child’s welfare and doctrine of comity supported returning the child to his habitual residence.
- Offered to bear all travel and maintenance expenses and to vacate the shared home if the wife returned to the USA.
Analysis of the Law
- Section 9(1) of the G&W Act requires that a court can only entertain custody petitions where the child “ordinarily resides.”
- A forced or unilateral change in residence does not create jurisdiction.
- “Ordinary residence” implies a place where the child usually lives with settled intent, not a location where he is taken unilaterally and temporarily.
- The High Court cited Lahari Sakhamuri and Paul Mohinder Gahun, emphasizing that custodial jurisdiction does not arise merely because one parent retains the child in India after a short visit.
- The court emphasized that jurisdiction cannot be conferred by wrongful retention of the child.
Precedent Analysis
The Court relied on the following judgments:
- Lahari Sakhamuri v. Sobhan Kodali — Unilateral retention in India does not confer ordinary residence.
- Yashita Sahu v. State of Rajasthan — Foreign custody orders must be respected; child’s welfare is paramount.
- Surinder Kaur Sandhu v. Harbax Singh Sandhu — Comity of courts is significant in transnational custody disputes.
- Ruchi Majoo v. Sanjeev Majoo — While temporary residence may confer jurisdiction, it must be genuine and not illegally created.
- Nithya Anand Raghavan — Indian courts can refuse to enforce foreign custody orders if they harm the child’s welfare.
- Rohith Tammana Gowda — Child’s best interest is distinct from the child’s preference or parental claims.
Court’s Reasoning
- The child had lived in the USA all his life and was enrolled in a school there until the sudden removal.
- The vacation to India was time-bound, and the child’s stay was prolonged only due to the wife’s unilateral decision.
- There was no material suggesting harm or danger to the child in the USA.
- The Arizona Court’s parenting order was reasonable and balanced, granting both parents structured parenting time.
- The High Court found that the minor’s best interest lay in resuming his settled life in the USA.
- The Family Court rightly rejected the guardianship petition due to lack of jurisdiction under Section 9 of the G&W Act.
Conclusion
- The High Court dismissed the wife’s appeal and upheld the Family Court’s rejection of her guardianship petition.
- Allowed the husband’s habeas corpus writ and directed the child’s return to Arizona under court-monitored conditions.
- The child’s welfare and legal residence in the USA were paramount.
Implications
- This judgment reinforces the principle that custody jurisdiction under Indian law depends on a child’s actual and lawful ordinary residence, not on unilateral parental action.
- It affirms the doctrine of comity of courts and respect for foreign custody orders where there is no proof of harm or violation of Indian public policy.
- It sends a strong message against forum shopping in international child custody matters.
