Delhi High Court Rejects Mother's Custody Plea, Says Jurisdiction Can't Arise from Forceful Removal by Parent

The Delhi High Court has turned down a mother’s request for exclusive guardianship of her young son, delivering a notable decision concerning jurisdiction in cross-border custody cases. The Court clarified that a child’s place of residence cannot be defined by one parent’s unilateral and coercive action, and such circumstances do not fulfill the requirement of “ordinary residence” necessary under Section 9 of the Guardians and Wards Act, 1890, for Indian courts to have jurisdiction.

The case revolved around a couple who have lived in Arizona, USA, since their marriage in 2013. Their son, born in 2017 in the U.S., is an American citizen. In late 2022, the family came to India for a holiday, planning to return in early 2023. Once in Delhi, the mother, assisted by airport staff, took the child away from the father without mutual agreement and began legal proceedings in India, including a guardianship claim and a complaint under domestic violence laws.

The guardianship plea was dismissed by a Delhi Family Court, which stated that the child’s brief and one-sided relocation did not establish a habitual residence in India. The mother challenged this in appeal, while the father sought the child’s return to the U.S. through a habeas corpus petition, pointing to a custody ruling from an Arizona court in his favor, issued in March 2023.

The High Court supported the lower court’s conclusion, pointing out that the child’s stay in Delhi was not consensual or planned but the outcome of the mother’s individual decision. The Court reiterated that such actions do not create legal residency or confer jurisdiction. It underscored that the concept of "ordinary residence" implies a stable, mutual, and lawful living arrangement.

The Court instructed the mother to return to Arizona with the child by July 1, 2025, with travel costs and a monthly allowance of USD 2,000 to be covered by the father. Should she choose not to return, she is to transfer custody to the father in court by July 2, failing which the father may seek police assistance.

The ruling sends a clear message that improper or forceful custody decisions by one parent cannot determine legal jurisdiction, particularly in international family matters. The matter concluded with no direction regarding legal costs.