Shifting Child To New Place Doesn’t Change Custody Rights: Delhi High Court

In a notable ruling, the Delhi High Court made clear that a parent cannot establish custody jurisdiction by forcibly moving a minor child away from their home. The Court clearly pointed out that forced movement of a child does not create only an “ordinary resident” under the Guardians and Wards Act 1890 (G&W Act) for purposes of bringing custody or guardianship applications. 

Legal Framework: Section 9 of the Guardians and Wards Act

• A guardian application must be filed in the District Court having jurisdiction over the minor's usual residence, according to Section 9(1) of the G&W Act. This clause diminishes parental jurisdiction shopping and stabilizes custodian matters.
• The High Court held that a child may be considered an "ordinary resident" when it is living there freely and naturally and not being detained unlawfully or in duress. 

Case Background

• From the scenario of the case, the case gave rise when, according to a custody agreement, the minor, who is a United States citizen, has been under custody of both parents for five years, when the mother alleges that she took the child to India and decided to stay in India and there enrolled the child in a Delhi school. The mother then, subsequently, brought a guardianship petition in the Delhi Family Court.
• The father, however, filed a habeas corpus petition seeking to compel the production and return of the minor child, asserting that the child was staying in India without his will and based on an absence of consent on his part.

Observation of the Family Court

Due to a lack of territorial jurisdiction, the Delhi Family Court denied the mother's petition for guardianship, stating that: 

• Prior to filing the petition, the child had been living in Delhi for 113 days; 
• This would not imply that the child lived in Delhi as a "ordinary resident." 
• The move to Delhi appeared to be a unilateral decision made by the mother without consent from the father. 

Delhi High Court’s Judgment

A Division Bench of Justice Navin Chawla and Justice Renu Bhatnagar endorsed the views of the Family Court. The Court clarified that: 

• " Forcibly moving a minor child from their home to a new location will not qualify as an ordinary dwelling at the new site."
• The High Court reaffirmed that the minor's residence must be in the new location voluntarily and legally, not by force or illegal means, even if a parent does so, in order for jurisdiction under Section 9 to apply. 

Citations of Key Judgments

1. Lahari Sakhamuri v. Sobhan Kodali (2019): The Supreme Court held that a child who was brought from the United States to India against the orders of a court in the United States cannot be held as an "ordinary resident" of India because mere presence does not amount to being an "ordinary resident."

2. In Paul Mohinder Gahun v. Selina Gahun (2006), it was held by the Delhi High Court that if someone was forced to live somewhere else for a considerable length of time, no jurisdiction could arise there. The original residence still holds legal consequence if such a move was forcibly induced or collusively contrived.

Final Remarks and Orders of Court

• The argument of the mother that simply living in Delhi and enrolling the child in school was enough for civil court proceedings for child custody was rejected by the High Court. 
• With these orders, the child is to be returned to his father, and that future determinations on the guardianship or custody of this child shall be resolved in courts having true territorial jurisdiction under the Act.

This makes it clear that no child is to be forcibly taken away in order to manipulate jurisdiction in any manner in child custody cases. The Delhi High Court has put much emphasis on why the welfare of the child, including the place of habitual residence of the child, should take precedence and be protected from any unilateral action of either parent. Also, the matters of legal procedure and the original residence have been made very clear in these decisions in relation to guardianship and custody cases. 

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