Child Custody | Parent Forcefully Shifting Minor To New Place Doesn't Make Them 'Ordinary Resident' For Granting Guardianship: Delhi High Court

The Delhi High Court has made it clear that when a minor child is forcefully shifted by one of the parents warring for the child's custody, such shift would not grant territorial jurisdiction for granting guardianship to such parent.Section 9 of the Guardians & Wards Act prescribes District Court having jurisdiction in the place where the minor 'ordinarily resides' shall have the jurisdiction to entertain an application with respect to guardianship of a minor.A division bench of Justices Navin Chawla and Renu Bhatnagar thus observed,“For invoking the jurisdiction of the Family Court under the G&W Act, it has to be shown that the minor “ordinarily resides‟ within its jurisdiction. 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 bench was dealing with the appeal preferred by a wife, against a family court order rejecting her guardianship petition for want of territorial jurisdiction.The child, a US-citizen who resided there with the parents for 5 years, was kept in India by his mother. The father had also filed a Habeas Corpus seeking, seeking production of the child and permission to take him back.The Family Court had observed that as the minor child had barely stayed in Delhi for 113 days prior to the filing of the petition under the G&W Act, the minor child cannot be said to be “ordinarily residing” in Delhi as on the date of the institution of the said petition and, therefore, the Family Court lacked the territorial jurisdiction to try and entertain the Guardianship petition.The wife contended that she was currently residing in Delhi and therefore the High Court here had territorial jurisdiction to entertain the present case.While the Court conceded 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 shall suffice, it emphasized that such temporary residence should not be illegal or forceful.It cited Lahari Sakhamuri v. Sobhan Kodali, (2019) where the child was born in the USA and was brought to India by the parent therein despite an interim order of the USA Court, and an application for the custody of the minor child was filed in the learned Family Court at Hyderabad within 20 days of her arrival in India. It was held that the minor child was not an ordinary resident of Hyderabad (India), as envisaged under Section 9(1) of the G&W Act.Similarly in Paul Mohinder Gahun v. Selina Gahun, (2006) it was held that a residence by compulsion, howsoever long, cannot be treated as a place of ordinary residence. “Where the child is removed by mischief to an interim location, the place of his/her original residence would alone have jurisdiction.”Thus the Court ruled that merely because the wife had decided to stay back in India and had got the minor child admitted to a school here, would not make the minor child an ordinary resident of Delhi (India). “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,” it remarked and issued apposite directions for return of the child.Case title: Sunaina Rao Kommineni v. Abhiram BalusuCitation: 2025 LiveLaw (Del) 663Case no.: MAT.APP.(F.C.) 135/2024Click here to read judgment

Child Custody | Parent Forcefully Shifting Minor To New Place Doesn't Make Them 'Ordinary Resident' For Granting Guardianship: Delhi High Court

Kapil Dhyani

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