Delhi High Court: In the present case delaing with forcible removal of minor child by parent to new place, an appeal was filed by the wife challenging the order dated 15-4-2024, whereby the guardianship petition filed by the wife under Sections 7, 8, 9 and 25 of the Guardians and Wards Act, 1890 (‘G&W Act’) was rejected. Further, the petition was also filed by the husband praying for a writ of Habeas Corpus, directing the production of the male minor child of the parties, and further seeking permission to take the minor child back to Arizona, USA.
The Division Bench of Navin Chawla* and Renu Bhatnagar, JJ., stated 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. Thus, the Court dismissed the appeal. Further, regarding the petition, the Court passed certain directions and disposed of the petition.
Background
Since, the appeal and the writ petition were based on identical facts and involve overlapping issues concerning the welfare of the minor child, they were being decided together in the present case.
The husband was residing in the USA since January 2005. Since November 2012, he was employed in Arizona, USA. The parties were married as per Hindu rites and ceremonies at Vijayawada, Andhra Pradesh on 15-8-2013. Immediately after the marriage, the wife travelled to the USA with the husband, and since then and till 25-11-2022, was residing in the USA with the husband.
From the wedlock, a male child was born and having been born in the USA, he was an American citizen by birth and resided with the parties in the USA till 25-11-2022, when he, along with his parents, travelled to India for a holiday with the return tickets booked for all three of them to return to the USA on 9-1-2023.
Admittedly, upon landing in Delhi on 25-11-2022, the wife, with the assistance of the Airport Security, took the minor child away from the husband. Thereafter, on 1-12-2022, the wife filed a petition seeking protective orders for herself and for her minor child. Further, the husband upon his return to the USA, filed an Emergency Motion for minor child Custody (Legal Decision Making and Parenting Time) for the minor son, in the Superior Court, Maricopa County, Arizona, USA. The wife was directed to cooperate in returning the minor child over to the husband at the airport upon his arrival.
As the wife did not return to the USA along with the minor child in compliance with the above order, the husband filed the present writ petition on 21-3-2023 before this Court.
Instead of complying with the above order, the wife, filed the Guardianship petition under the G&W Act, seeking a declaration that she was the sole and legal guardian of the minor child and seeking permanent and sole custody of the minor child. The Family Court further held that merely because a marital discord had arisen between the parties and the wife intends to reside in Delhi along with the minor child, it could not be a ground for her to claim permanent custody of the minor child within the legal system of India. Accordingly, the petition filed by the wife was rejected.
Analysis, Law, and Decision
The Court stated that the welfare of the minor child was paramount, and the welfare of the parents could not be confused as the welfare of the minor child. None of the warring parents could be allowed to dictate what the welfare of the minor child would be, and it would be for the Court to independently assess this issue considering all surrounding circumstances presented before it.
The Court stated that in the present case, there was no dispute based on facts at all. It was not disputed that the parties had visited India only for short stay and had booked their return tickets for all three of them. If the wife always had an intention of staying back in India on her return, at least, she did not manifest this to the husband before their departure from the USA. The husband, in his turn, immediately on knowing that the wife did not intend to return the minor child to the USA, invoked the remedies before the Court in the USA, and was diligently following up the same, including the filing of the present petition expeditiously after the passing of the order by the Superior Court at Arizona, USA.
The Court stated 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.
The Court stated that while it was correct that for invoking jurisdiction under Section 9 of the G&W Act, it was not necessary for the child to be a permanent resident of the place and even a temporary residence should suffice, such temporary residence should not be illegal or forceful. The court, on an overall reading of the petition should have to determine whether the child could be said to be ordinarily residing within its jurisdiction.
The Court stated that in the present case, on a bare reading of the petition filed by the wife under the G&W Act, and the surrounding circumstances that were admitted by her, the minor child could not be said to be ordinarily residing within the jurisdiction of the Family Court. Thus, the Court dismissed the appeal.
Further, regarding the petition filed by the husband, the Court directed that the wife, if she so desires, should return to Arizona, USA, along with the minor child, on or before 1-7-2025, and she should inform her decision to return to USA to the husband, on or before 15-6-2025. In case the wife decided to return to Arizona, USA, the husband should make all necessary travel arrangements for the wife and the minor child. Upon their return, the husband should allow the wife and the minor child to stay at their earlier shared residence and should remove himself from the same until further orders are passed by the competent Court at Arizona, USA in that regard.
Further, the Court stated that the husband should also pay to the wife the maintenance, presently assessed at USD 2000 per month for herself and for the minor child. This amount, for the first month, should be paid in advance by the husband at the time of departure of the wife from India along with the minor child. Further directions regarding the custody and the guardianship of the minor child and on the maintenance for the wife should be obtained by the parties from the competent Court at Arizona, USA.
Thus, passing the aforesaid directions, the Court disposed of the present petition.
[Sunaina Rao Kommineni v. Abhiram Balusu, MAT.APP.(F.C) 135 of 2024, decided on 28-5-2025]
*Judgment authored by- Justice Navin Chawla
Advocates who appeared in this case:
For the Appellant: Jai Sahai Endlaw, Charu Dalal, Choudhary Amit Bassoya and Simran Johar, Advocates.
For the Respondent: Prabhjit Jauhar, Aadarsh Kothari, Sahej Kataria, Advocates.
For the State: Rinku Garg, MK Kunal Narang, Manik Rai Bhalla, Prashant Dahiya and Jitender Singh, Advocates; Jai Sahai Endlaw, Charu Dalal, Choudhary Amit Bassoya and Simran Johar, Advocates.