Custody Dispute Must Be Decided At Child's Place Of 'Ordinary Residence': Karnataka High Court Orders Return Of Minor To Mother In US

In a child custody battle, the Karnataka High Court has recently held that the 'ordinary residence' of the child will be the determining factor to decide the applicable jurisdiction. The High Court underscored that though the father retains his right to seek custody, he must do so in the U.S. Courts where the child ordinarily resides.Asking the father to return the custody of his minor son to the mother in the United States, the court opined that uprooting a child from their natural, social and academic environment would be against the 'welfare of the minor' by relying on Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.“The Courts have consistently held that a child's mere physical presence in a new place, especially due to unilateral relocation does not automatically create ordinary residence for jurisdictional purposes. Jurisdiction cannot be artificially created by removing the child to another place…”, the court further observed about the faulty interpretation of jurisdictional conflict by the family court.The single-judge bench of Justice Lalitha Kanneganti observed that the family court erred in holding that the child was ordinarily residing in India when the family only came back to India to attend a ritual.“…From the very pleadings of the father, they have come to India only for attending a pooja. It is his case that after coming to India, as his father was unwell, he decided to stay back in India. The mother did not want to stay back and according to her, the son will have a better future in U.S…”, the court noted in the order.While noting that the U.S. has been the child's place of ordinary residence, the court also sympathised with the mother, who was forced to run from 'pillar to post' in the last 6 years for securing her child's custody. The minor child had also expressed his desire to go with the mother when they met the judge in the chambers.“…When the mother is having a flourishing career in U.S., she cannot be compelled to stay in India and the father keeping the child in India cannot compel the mother to stay back in India. The mother has every right to continue her profession and have a happy life along with her family. This is nothing but blackmailing the mother to come in terms with the expectations of the father…”, the single judge bench observed that the father could have easily applied before the U.S court for custody instead of instituting the proceedings at Bengaluru.The single judge bench also expressed concerns about the unilateral relocation of children and the connected issues like forum shopping and the emotional impact such relocation has on children.“…The present case is not merely a dispute between two litigating parents asserting their legal rights over the minor child but it reflects the tragic consequences of prolonged litigation in which innocent child becomes the silent sufferer…”, the court opined.The court has asked the father to approach the competent U.S. court to assert his custodial rights. In the meantime, the father has been asked by the court to hand over the child's custody to the mother by May 2026 (after the completion of the school academic year) till further orders from the competent court.The father will be permitted to visit the child in the US every six months, and he will have exclusive custody of the child when he is visiting the US, the court added.BackgroundEarlier, the father had filed a case before the trial court seeking a declaration that the minor is in his lawful custody. He wanted the mother, currently in the United States, not to interfere with the lawful custody of their son. The mother, on the other hand, contended before the Bengaluru Court that it had no jurisdiction to entertain the matter under Section 9 of the Guardians and Wards Act, 1890.The marriage between the opposite parties got solemnised in 2008. Under a private family arrangement, the parents and the child relocated to New Jersey in 2014. The marriage between the parties allegedly turned sour after 2017, when the husband wanted to briefly go back to India to take care of his ailing father, while the wife wanted to stay on in the US. According to the husband, when the entire family came back to India for a ritual in 2019, he and his son decided to stay back, whereas the wife returned to the US. Later that year, the mother secured a ex parte order for the return of the custody of her child in India from the Superior Court of New Jersey, US. However,according to the husband, the child is more comfortable in India while staying with him and his family.The family court at Bengaluru, while dismissing the interim application filed by the mother, held that the child was born in India and 'ordinarily residing' in India at the time of the husband's application. Hence, the question of conflict in jurisdiction wouldn't arise. Later, the mother had even filed a habeas corpus petition; the courts had then granted the mother exclusive custody rights whenever the mother was in India...

Custody Dispute Must Be Decided At Child's Place Of 'Ordinary Residence': Karnataka High Court Orders Return Of Minor To Mother In US

Sebin James

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