Isabella Mariam

The High Court of Delhi Division Bench of Justice Navin Chawla and Justice Renu Bhatnagar held that the minor child's welfare must be independently assessed by the court and cannot be determined unilaterally by either parent. The court directed the return of the minor child to Arizona, USA, where both parents had permanent residency, and dismissed the mother’s guardianship petition for lack of territorial jurisdiction. It held that the child could not be considered an "ordinary resident" of Delhi as the child had only arrived for a temporary vacation. The writ petition seeking custody was allowed and the appeal against the Family Court's order was dismissed.

The matter involved a marital dispute between a wife and husband who had both been permanent residents of the USA since August 2013. They had travelled to India from Arizona on 25.11.2022 along with their minor son, born on 30.10.2017 in the USA, for a short vacation. The return tickets for all three were booked for 09.01.2023. Upon arrival at the Delhi airport, the wife, with the help of airport security, took the child away from the husband.

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Subsequently, the wife filed a writ petition (W.P. (Crl.) 2888/2022) before the Delhi High Court seeking protective orders. On 05.12.2022, directions were issued by the court to provide contact information of law enforcement to her. The writ petition was eventually withdrawn on 22.02.2023.

In parallel, the wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, before the Metropolitan Magistrate, Mahila Court, South East District, Saket Courts, on 02.01.2023. The child was enrolled in a Delhi school in January 2023.

Meanwhile, the husband returned to the USA and on 23.01.2023, filed an Emergency Motion for custody of the minor child in the Superior Court of Maricopa County, Arizona. The Arizona court issued directions for a virtual conference and eventually passed a detailed custody order on 10.03.2023. It held that Arizona was the home state of the minor child and granted primary custody to the father with detailed arrangements for parenting time and communication. The order also allowed the father to retrieve the child from India if the mother failed to comply.

The wife did not return to the USA and instead filed a guardianship petition under Sections 7, 8, 9, and 25 of the Guardians and Wards Act, 1890, in the Family Court at Saket. The Family Court, on 15.04.2024, dismissed the petition for lack of territorial jurisdiction under Order VII Rule 11 of the CPC, concluding that the minor was not ordinarily resident in Delhi. The wife appealed this order before the High Court.

In the writ petition (W.P. (CRL) 912/2023), the husband prayed for a Writ of Habeas Corpus for the return of the minor to the USA. The mother opposed this on the grounds that a detailed inquiry was required and referred to a domestic violence case she had filed. She relied on the child’s new school enrolment and a favourable jurisdictional finding by the Magistrate Court.

The father argued that the child was a US citizen, residing in Arizona since birth, and his removal to India was unilateral and against the parents' agreed vacation plan. He submitted school records from the USA and relied on Indian and international precedents concerning custody, including the doctrines of comity of courts and the child’s welfare.

The court observed that "these cases present a social problem where the parties move to a foreign country for their job and for better living and with an intent to reside there permanently, however, due to differences between them, one of the spouses comes back to India with the minor child."

 It stated that "None of the warring parents can 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 taking into account all surrounding circumstances."

Referring to Lahari Sakhamuri v. Sobhan Kodali, the court noted that "the doctrine of comity of Courts, intimate connection, orders passed by Foreign Courts having jurisdiction in the matter regarding custody of the minor child, and the citizenship of the parents and the child, etc., can override the consideration of the best interest and the welfare of the child." It added that the court must ensure any repatriation "does not result in any physical, mental, psychological, or other harm to the child."

In determining whether the child was an "ordinary resident" of Delhi, the court stated that "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." It held that the facts of the case aligned with earlier precedents such as Paul Mohinder Gahun v. Selina Gahun and Philip David Dexeter v. State of NCT of Delhi.

The court examined the pleadings of the wife and noted: "Her own residence, as noted hereinabove, is not the repository of the jurisdiction in the Family Court." It also found that the minor child was removed unilaterally by the wife from a planned return trip, and therefore, "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."

On the issue of summary vs detailed inquiry, the court reiterated from Rohith Tammana Gowda v. State of Karnataka that the difference between a child's wishes and best interests must be carefully assessed and that the courts are obligated to make such independent determinations.

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The High Court issued the following directions:

• The wife, if she so desires, shall return to Arizona, USA, along with the minor child on or before 01.07.2025.

• She shall inform her decision to return to the USA to the husband on or before 15.06.2025.

• If she decides to return, the husband shall make all necessary travel arrangements for both the wife and the minor child.

• Upon their return, the husband shall vacate their earlier shared residence to allow the wife and the child to reside there until further orders by the competent court in Arizona.

• The husband shall pay USD 2000 per month in maintenance for the wife and child, with the first month's amount to be paid in advance prior to departure from India.

• All further issues regarding custody, guardianship, and maintenance shall be addressed by the competent court in Arizona.

• If the wife chooses not to return to Arizona, she must hand over custody of the minor child to the husband on 02.07.2025 before the Registrar General of the High Court at 11:00 A.M.

• Should the wife fail to comply, the husband may seek police assistance to obtain custody; the SHO of the concerned police station is directed to assist.

• Once custody is obtained, the husband shall take the child back to Arizona and seek further directions from the competent court there.

• If the wife holds the American passport of the child, she must hand it over to the husband.

• The wife must facilitate the child’s withdrawal from school in India, and the husband shall ensure his admission into a school in the USA with minimal disruption.

Advocates Representing the Parties:

For the Petitioners: Mr. Prabhjit Jauhar, Mr. Aadarsh Kothari, Ms. Sahej Kataria, Advocates

For the Respondents: Mr. Jai Sahai Endlaw, Ms. Charu Dalal, Mr. Choudhary Amit Bassoya, Ms. Simran Johar, Advocates

Case Title: XXX v YYY

Neutral Citation: 2025: DHC:4483-DB

Case Number: MAT.APP. (F.C.) 135/2024 & W.P.(CRL) 912/2023

Bench: Justice Navin Chawla, Justice Renu Bhatnagar

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