Forceful Retention Of Child in India Does Not Create 'Ordinary Residence' For Custody Petition Under S.9 of Guardians and Wards Act: Delhi High Court - 2025-10-10

Delhi High Court Orders Child's Return to USA, Rules Forceful Retention Doesn't Establish Jurisdiction for Custody Plea

New Delhi: In a significant judgment concerning international child custody, the Delhi High Court has ruled that a minor child, brought to India for a short vacation and unilaterally retained by one parent, cannot be considered "ordinarily residing" in Delhi for the purpose of filing a custody petition under the Guardians and Wards Act, 1890. A Division Bench of Justice Navin Chawla and Justice Renu Bhatnagar allowed a husband's habeas corpus petition, directing the mother to return their minor son to his habitual residence in Arizona, USA.

The Court emphasized that in such matters, the welfare of the child is the paramount consideration, which includes returning the child to the jurisdiction of their birth and permanent residence.

Case Background

The case involved a couple, Sunaina Rao Kommineni (the wife) and Abhiram Balusu (the husband), who were permanent residents (Green Card holders) of the USA since 2013. Their son, born in 2017, is a US citizen by birth. In November 2022, the family travelled to India for a vacation, with return tickets booked for January 2023.

However, upon arrival in Delhi, the wife, with the help of airport security, separated from the husband and took the child with her. She subsequently filed petitions for domestic violence and divorce in Delhi and enrolled the child in a local school.

Meanwhile, the husband initiated custody proceedings in the Superior Court of Arizona, which asserted its jurisdiction, citing that Arizona was the child's "home state." The Arizona court, after hearing both parties, granted the husband sole legal decision-making authority and directed the wife to return the child by March 17, 2023. When the wife failed to comply, the husband filed a writ of habeas corpus in the Delhi High Court seeking the child's return.

The wife had also filed a guardianship petition before the Saket Family Court, which was rejected for lack of territorial jurisdiction, an order she appealed before the High Court.

Arguments of the Parties

For the Husband (Abhiram Balusu):

- The family was permanently settled in the USA, and the trip to India was merely a short vacation.

- The child, a US citizen, was well-settled in his school and community in Arizona.

- The wife unilaterally and wrongfully retained the child in India against the father's consent and in defiance of an order from a competent foreign court.

- The child's best interests—including better education, social security, and development—lie in returning to the USA.

- The Delhi Family Court rightly concluded it lacked jurisdiction as the child was not "ordinarily residing" in Delhi.

For the Wife (Sunaina Rao Kommineni):

- The welfare of the child should be determined by Indian courts, and a foreign court's order is not binding.

- The child was now settled in a reputed school in Delhi and living in a safe, loving environment with his mother.

- The determination of "ordinary residence" is a mixed question of fact and law that cannot be summarily dismissed.

- The husband had engaged in domestic violence, making it unsafe for the child to return.

Court's Analysis and Ruling

The High Court, deciding both the wife's appeal and the husband's writ petition, delivered a comprehensive judgment addressing both territorial jurisdiction and the child's welfare.

On 'Ordinary Residence' and Jurisdiction: The Bench firmly held that the Family Court correctly rejected the wife's guardianship petition. Citing Section 9 of the Guardians and Wards Act, the court stated that jurisdiction lies where the minor "ordinarily resides."

The judgment clarified:

“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 residence by compulsion, howsoever long, cannot be treated as a place of ordinary residence.”

The court noted the undisputed facts: the family were permanent US residents, had return tickets, and the child's stay in India was a direct result of the wife's unilateral action. Merely enrolling the child in a school in Delhi could not confer jurisdiction.

On Child's Welfare and Repatriation: The High Court ruled that the paramount welfare of the child warranted his return to the USA. The key factors influencing this decision were:

- The child is a US citizen, born and raised there until the age of five.

- He was accustomed to the environment and schooling in the USA.

- The Arizona court had passed a detailed, just, and proper order for joint parenting.

- The father's undertaking to bear all travel and living expenses for the mother and child in the USA and to move out of the shared residence to ensure their comfort.

The court observed:

"It need not be re-emphasized that in such consideration, it is the welfare of the minor child which is paramount, and that the welfare of the parents cannot be confused as the welfare of the minor child. None of the warring parents can be allowed to dictate what the welfare of the minor child would be..."

Final Directions

Dismissing the wife's appeal, the High Court allowed the husband's habeas corpus petition and issued detailed directions:

1. The wife must decide by June 15, 2025, if she will return to Arizona with the child. If so, the husband will bear all travel expenses and provide USD 2000 per month in maintenance.

2. If she chooses to return, she and the child can live in their previous shared residence, from which the husband will move out.

3. If the wife decides not to return, she must hand over custody of the child to the husband on July 2, 2025, before the Registrar General of the High Court.

4. The police were directed to assist the husband in securing custody if the wife fails to comply.

5. All further matters regarding custody and guardianship are to be decided by the competent court in Arizona.

This judgment reinforces the principle that parental abduction cannot be used to create jurisdiction and underscores the court's role in ensuring a child's welfare by returning them to their native environment, especially when fair and detailed orders from a competent foreign court exist.