Jharkhand High Court
(Against The Judgment Dated 16.02.2024 ... vs Vayu Kishore on 2 December, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Neutral Citation
2025:JHHC:36692-DB
First Appeal (DB) No. 78 of 2024
(Against the judgment dated 16.02.2024 passed by Sri
Amitesh Lal, learned Principal Judge, Family Court,
Jamshedpur in Original Suit No. 408/2023.)
Dr. Abhilasha Sharma, W/o Vayu Kishore, D/o Mahendra
Kumar Sharma, R/o 23. Subernarekha Flats Sakchi,
Jamshedpur, Dist.- East Singhbhum, Jharkhand.
... Appellant
Versus
Vayu Kishore, S/o Anjanu Kishore, R/o 2035W Middlefield
Road, Apartment 11, Mountain View, California, USA-94043.
... Respondent
----
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
----
For the Appellant : Ms. Malvika Rajkotia, Adv.
Mr. Samavesh Bhanj Deo, Adv.
Mr. Hari Pillai, Adv.
For the Respondent : Mr. Prabhjit Jauhar, Adv.
Mr. Indrajit Sinha, Adv.
Mr. Ankit Vishal, Adv.
Mr. Kashish Tiwary, Adv.
----
CAV on : 24/10/2024 Pronounced on : 02/12/2025
JUDGMENT
Per Rongon Mukhopadhyay, J. :
1. Heard Ms. Malvika Rajkotia, learned counsel for the appellant and Mr. Prabhjit Jauhar, learned counsel appearing for the respondent.
2. This appeal is directed against the judgment dated 16-02-
2024 passed by Sri Amitesh Lal, learned Principal Judge, Family Court, Jamshedpur in Original Suit No. 408/2023 whereby and whereunder, the guardianship application preferred by the appellant has been dismissed on the ground that the minor child in question does not "ordinarily resides" in Jamshedpur within FIRST APPEAL NO. 78 OF 2024 1 Neutral Citation 2025:JHHC:36692-DB the meaning of Section 9(1) of the Guardian and Wards Act, 1890.
3. For the sake of convenience, both the parties are referred to in this judgment as per their status before the learned trial court.
4. The petitioner (appellant herein) had filed an application under Section 7 and 17 of the Guardian and Wards Act, 1890 against the respondent (respondent herein also) in which it has been stated that the petitioner and her parents went to USA in April 2018 and the petitioner and the respondent got married on 05-05-2018 in New Jersey, USA as per Hindu rites and customs. After the wedding, both the parties moved to the house of the respondent situated at Mountain View in the State of California. At the time of leaving New Jersey, all the petitioner's jewelry and heirloom trousseau were retained by the mother of the respondent. The petitioner in course of her marital life realized that the respondent was suffering from certain personality disorders, some of which were obsessive-compulsive disorders in nature. It has been stated that the respondent also suffered from financial paranoia and was a miserly spender. The respondent always used to keep tabs on the spending of the petitioner and despite bragging of a degree in Finance from Wharton and working in Google, he was averse to the use of technology. The petitioner, in the meantime, had become pregnant, but the respondent was thoroughly indifferent to the needs of the petitioner and under such circumstances, the parents of the petitioner arrived at California, USA in March 2019 towards the end of the third semester of pregnancy of the petitioner. The respondent behaved indifferently towards the parents of the petitioner and the parents of the petitioner visited her house only when absolutely necessary. On 09-05-2019, a girl child named Vindhya was born to the couple after a traumatic delivery. On FIRST APPEAL NO. 78 OF 2024 2 Neutral Citation 2025:JHHC:36692-DB the pretext of childbirth, the respondent took a month's paternity leave and stayed with the petitioner at her parents' house, but he did not mend his ways and spent his time either playing video games or talking on the phone with his sister. The relationship between the petitioner and the respondent deteriorated to such an extent that the respondent resorted to physical violence upon the petitioner which constrained the petitioner to leave the residence of the respondent at Mountain View along with her daughter for her parents' house on 05-02-2021. Since the marriage was on the rocks and on the insistence of the petitioner, both underwent online marriage counselling from their respective places, but during this period, the respondent did not show any inclination to meet his daughter. During the entire period of counselling from October 2021 to 31st March 2022, the respondent did not provide any financial support either to the petitioner or towards the needs of the child and consequently, the petitioner had to depend upon her parents to fulfil even the basic necessities of her daughter. It has been stated that realizing the fact that one has to stand on one's own legs, the petitioner worked extremely hard and cleared her medical licensing exams and in February 2022, she received a job offer in the field of clinical research in women's health. Despite the objection of the respondent, the petitioner took the job and got her daughter admitted in a respectable play school. She had consequently shifted to an apartment in Berkeley in March 2022. The online counselling sessions did not have any impact on the respondent and ultimately, the petitioner filed for divorce before the Superior Court of California on 30-03-2022 which was registered as Case No. D22-01180. On 11-08-2022, a mediation hearing was conducted for the parties to arrive at an amicable solution with respect to child custody and support payments, but no concrete suggestion was given by the respondents towards an amicable FIRST APPEAL NO. 78 OF 2024 3 Neutral Citation 2025:JHHC:36692-DB resolution and the suggestions from the petitioner were simply brushed aside. It has been stated that on 25-08-2022, the concerned court opined that since the parties had not come up with any parenting plan during the mediation hearing and since temporary custody was to be adjudicated upon, there was no formal hearing required. The court issued a joint custody order whereby the parents were allowed to singularly have the child with them for three days in one week followed by four days in the following week with the child being with the other parent on the remaining days. However, the visits to the respondent in compliance of the order of the court proved to be an unnerving experience and the last straw in the coffin was the injury suffered by the child in her anal fissure and this made the petitioner resolve that she would not allow the respondent to come anywhere near her daughter. The petitioner contacted her lawyers who advised her that a temporary order cannot be appealed against in absence of any provision for the same. The petitioner realized that compliance of the order will put the physical and psychological health of her daughter at grave risk and since the order in question is not an appealable order, the petitioner decided to return back to India which she ultimately did on 09-09-2022. The petitioner sent an email to the respondent on 10-09-2022 informing him about she having returned to India due to the traumatic experience her daughter had suffered which, however, was refuted by the respondent vide his email dated 12-09-2022. The petitioner has learnt that the respondent had approached the Superior Court of California and the Court had accorded custody of the child to the respondent and cancelled all spousal and child support payable by him to the petitioner. The petitioner in the meanwhile had taken a job at Sai Scan Diagnostic Centre Pvt. Ltd. and also got her daughter admitted in Sacred Heart Convent School, a reputed educational FIRST APPEAL NO. 78 OF 2024 4 Neutral Citation 2025:JHHC:36692-DB institution in the locality. It is in these circumstances the petitioner has prayed for custody and guardianship of her four- year-old daughter Vindhya.
5. The respondent through his authorized representative had filed an application under Order 7 Rule 11 read with Section 151 Code of Civil Procedure in which it has been stated that the guardianship petition is tainted with malafide and baseless and unsubstantiated allegations have been levelled against the respondent. The respondent is a U.S. citizen who is gainfully employed at Google, LLC., Sunnyvale, California, USA. The petitioner is an Indian citizen by birth who immigrated to USA as the respondent's fiance in April 2018 on K-1 visa sponsored by the respondent and had later on acquired the status of a lawful permanent resident (Green Card Holder) of the U.S. After the marriage between the petitioner and the respondent, differences had cropped up and the petitioner had unilaterally removed the daughter of the respondent from his custody and in order to resolve the differences, the petitioner and the respondent started attending weekly marriage counselling sessions. However, on 20- 02-2022, the petitioner had filed a divorce application before the foreign court citing "irreconcilable differences" as the main plank for seeking divorce. The petitioner had also filed a motion seeking sole legal and physical custody of the child along with child and spousal support by way of a Request for Order dated 03-05-2022 before the foreign court. The foreign court passed an order on 25- 08-2022 wherein joint legal and physical custody of Ms. Vindhya was given while also allowing child and spousal support to the petitioner. Additionally, travel restrictions were imposed upon the petitioner and the respondent mandating a written permission from the court or from the other parent to take Ms. Vindhya out of U.S. was also imposed upon by the foreign court. The petitioner, however, flouted and disobeyed the order of the FIRST APPEAL NO. 78 OF 2024 5 Neutral Citation 2025:JHHC:36692-DB court by departing for India from U.S. along with Ms. Vindhya without the consent of the respondent or of the court. Following a series of failed attempts to trace the recent whereabouts of the petitioner and Ms. Vindhya, the respondent had submitted a Supplemental Declaration to the custody orders before the foreign court on 18-11-2022 seeking modification of the custody order to ensure compliance of the same by the petitioner. Thereafter, a review hearing was held wherein the violation of the petitioner was recorded by the foreign court in its order dated 02- 12-2022. It was also observed by the foreign court that the custody order was valid and the petitioner being present at the time of hearing has willfully and knowingly violated the same while having the ability to comply with it. In view thereof, vide order dated 02-12-2022, the petitioner was directed to immediately return Ms. Vindhya's custody to the respondent's physical custody in California, U.S. and the child and the spousal support granted to the petitioner was suspended until her compliance with the orders of the foreign court. It has been stated that the petitioner has not only ignored the specific directions of the foreign court, but has also violated Section 14 of the Foreigners Act, 1946 by prolonging Ms. Vindhya's stay in India and committing breach of visa conditions which explicitly provided that continuous stay during each visit should not exceed 180 days and was granted only for the purpose of meeting friends and relatives. The respondent had preferred a writ of habeas corpus before the Karnataka High Court being W.P.(HC) No. 43/2023 since the residential address of the parents of the petitioner prior to her relocation to U.S. was shown as Bengaluru. It has been stated based on the factual aspects of the case that the court where the suit for guardianship has been filed, in view of Section 9(1) of the Guardian and Wards Act, 1890 does not have the competency to entertain and adjudicate the FIRST APPEAL NO. 78 OF 2024 6 Neutral Citation 2025:JHHC:36692-DB question of custody of Ms. Vindhya as she is not "ordinarily residing" within the territorial jurisdiction of the court. Ms. Vindhya is a naturalized citizen of U.S. and has lived in the U.S. for more than three years being completely adapted to the social and cultural life prevalent in the U.S. and merely on account of her stay in Jamshedpur, Ms. Vindhya cannot be said to be an ordinary resident of Jamshedpur. The respondent has, therefore, prayed that the application preferred by the petitioner under the Guardian and Wards Act, 1890 is liable to be dismissed.
6. A detailed reply has been submitted by the petitioner to the application of the respondent under Order 7 Rule 11 CPC in which it has been stated that Ms. Vindhya is "ordinarily residing"
in Jamshedpur since September 2022 and hence the case for guardianship is maintainable. Ms. Vindhya, under the care and custody of her mother and natural guardian i.e., the petitioner, had travelled from the U.S. and arrived in India on 09-09-2022 and has relocated herself to Jamshedpur where both are permanently residing since 12-09-2022. In accordance with her residential status, the petitioner had updated her Jamshedpur address in the Aadhaar card, had opened a bank account with HDFC Bank in Jamshedpur, secured an appointment as a Medical Officer with the State Government and got her daughter admitted in Sacred Heart Convent School, Jamshedpur. These facts unequivocally establish that Ms. Vindhya is "ordinarily residing" at Jamshedpur as mandated under Section 9(1) of the Guardian and Wards Act, 1890. The claim of the respondent that the visa conditions have been violated is totally without any basis as in the context of Rule 7(1)(f) of the Registration of Foreigners Rules 1992, the Ministry of Home Affairs (Foreigners Division), Government of India had issued a circular being Circular No. 25022/62/2020-F-1 dated 13-08-2020 wherein it has clearly been notified and clarified that children below the age of 12 years FIRST APPEAL NO. 78 OF 2024 7 Neutral Citation 2025:JHHC:36692-DB are exempted from the requirement of registration. It has been stated that irrespective of the nature of arrangement of joint custody of Ms. Vindhya by the foreign court and once the petitioner was informed by her lawyers that the said order was not appealable, the petitioner being faced with a deteriorating physical and psychological health of Ms. Vindhya took the extreme step of moving out with the child from U.S. to India. The petitioner has emphatically denied the assertions made by the respondent in his application preferred under Order 7 Rule 11 CPC.
7. The learned trial court vide impugned order dated 16-02-2024 has come to a finding "Thus, from the discussions as above, it is manifest that the child Vindhya does not ordinarily reside within the territorial jurisdiction of this court" and the suit was consequently dismissed as being barred by law and without having any cause of action.
8. Ms. Malavika Rajkotia, learned counsel for the petitioner/appellant has assailed the impugned order dated 16-02-2024 as legally flawed as it violates the fundamental principles of Order 7 Rule 11 CPC which assumes the truth and correctness of the pleadings of the petitioner without considering contradictory evidence from the respondent. The learned family court has made definitive conclusion based solely on the contention of the respondent which directly contradicted the guardianship petition, despite the absence of oral or documentary evidence thereby ignoring complex and disputed facts that requires adjudication on the basis of evidence. Such determination on contested matters is legally untenable and contravenes the established civil and family law principles. The learned family court, while citing the judgments, has refused to render any observation/discussion on the applicability of such judgments. The facts in Ruchi Majoo v. Sanjeev Majoo reported FIRST APPEAL NO. 78 OF 2024 8 Neutral Citation 2025:JHHC:36692-DB in AIR 2011 SC 1952 are identical to the present case and has not been distinguished otherwise by the learned trial court despite the law laid down therein being squarely applicable to this case. It has been submitted that the true intent of Section 9 of the Guardian and Wards Act, 1890 which is designed to ensure justice for children and their caregivers within the jurisdiction of the court has not at all been considered by the learned family court. The outcome of the impugned judgment effectively deprives the petitioner and the child Vindhya of a competent forum to assert their rights. The impugned judgment paradoxically asserts that the guardianship proceedings would not affect custody till the mother remained in India completely ignoring the fact that the mother had sought an immediate relief of interim custody to validate the stay of Vindhya in India and thus contradicts the settled legal precedence. The petitioner has given sufficient proof regarding the "ordinary residence" of the child being Jamshedpur, but the learned family court has misdirected itself by making an assumption that since the parties were married in the USA, bringing the child Vindhya to India on a tourist visa does not imply any intent to reside there. Ms. Rajkotia, learned counsel for the petitioner has stressed on the fact that the learned family court has not only incorrectly applied the law but it has also misunderstood the purpose of these proceedings and has ignored that; (i) neither the Guardian and Wards Act nor the Family Courts Act, 1986 envisage jurisdiction based on "cause of action" and (ii) the cause of action is simply based on where the child resides. The amplitude of the Family Courts Act is wider and not restricted by any personal law or other statutory law. The family court has analyzed the facts of the case through the prism of a civil suit, but has not appreciated the evidence filed by the mother as per the mandate laid down under the Family Courts Act ,1986. The family court has FIRST APPEAL NO. 78 OF 2024 9 Neutral Citation 2025:JHHC:36692-DB overlooked the fact that in matrimonial disputes a hyper- technical interpretation of the Code of Civil Procedure cannot be adopted. Section 10(3) read with Section 14 of the Family Courts Act, 1984 empowers the Family Courts to devise its own procedure. The learned family court has ignored the fact that this case transcends the typical custody dispute between competent parents; and it involves an unfit parent and a foreign legal system prioritizing parental rights over child's welfare. Indian law, however, places the child's welfare as of paramount importance especially when the child is within Indian jurisdiction seeking protection. The focus should have been on the established life of the child at Jamshedpur with her mother to ensure continuity of care and prevent irreparable harm to Vindhya. It has been submitted that the issue of welfare has already been looked into by the Karnataka High Court in the Habeas Corpus Application preferred before it by the respondent and after a summary inquiry, has ruled in favor of the petitioner.
9. Ms. Rajkotia in support of her various contentions has relied upon the case of Dhanwanti Joshi v. Madhav Unde reported in (1998) 1 SCC 112, Nithya Anand Raghavan v. State (NCT of Delhi) reported in (2017) 8 SCC 454, Ram Sarup v. Chimman Lal reported in AIR 1952 All 79, Ramji Lal Yadav v. Dalip Kumar Yadav reported in (1998) 76 DLT 526, Central Bank of India v. Ram Narain reported in AIR 1955 SC 36, Mst. Jagir Kaur & Anr. v. Jaswant Singh reported in AIR 1963 SC 1521 and Mrs. Kanika Goel v. The State of Delhi through SHO & Anr. reported in (2018) 9 SCC 578.
10. Mr. Prabhjit Jauhar, learned counsel appearing for the respondent has defended the impugned order by submitting that the same is detailed and contains appropriate reasons. It was the petitioner who had invoked the jurisdiction of the U.S. Court on the ground that the minor child was a habitual resident of the FIRST APPEAL NO. 78 OF 2024 10 Neutral Citation 2025:JHHC:36692-DB U.S. considering the fact that the marriage between the parties was solemnized in the U.S. Therefore, it was only the U.S. Court which had intimate contact and closest concern with the parties and their offspring from the marriage. It has been submitted that after filing a divorce petition and custody petition in the U.S. and having invited the order dated 25-08-2022 granting joint custody and shared parenting of the child in the U.S. and having exercised and complied with the same for a period of two weeks, the petitioner had very stealthily abducted and removed Vindhya from the U.S. which was an act of abuse of the process of court by the petitioner. The petitioner as has been rightly held by the Family court could not be allowed to litigate in another forum especially when instead of assailing or challenging the orders of the competent court at U.S., the petitioner has chosen to violate the orders of the jurisdictional court in U.S., the jurisdiction of which was invoked by the petitioner herself. Apart from the fact that the learned family court at Jamshedpur had no jurisdiction to entertain the guardianship petition as the minor child was/is not an ordinary resident of Jamshedpur, but also the fact that the filing of the guardianship case at Jamshedpur was a counterblast to the orders passed by the U.S. Court, the jurisdiction of which was invoked by the petitioner herself. Therefore, the guardianship case in Jamshedpur apart from being barred by law under Section 9 of the Guardian and Wards Act, 1890 was also required to be nipped in the bud as undertaken by the learned Family court to further prevent the abuse of the process of law. Reference in this context has been made to the case of Lahari Sakhamuri v. Sobhan Kodali reported in (2019) 7 SCC 311. Moreover, no event had taken place within the jurisdiction of the Family Court, Jamshedpur giving cause of action for the suit to be filed in the Family court. It has been submitted that "ordinary resident" is a terminology FIRST APPEAL NO. 78 OF 2024 11 Neutral Citation 2025:JHHC:36692-DB used in Section 9 of the Guardian and Wards Act, 1890 to determine the jurisdiction of the district court deciding the question of custody. It is a settled law that if a minor foreign child is temporarily residing at any given location in India, the district court of that location cannot be said to have jurisdiction to adjudicate upon such matters in view of Section 9 of the Guardian and Wards Act, 1890. The term "ordinary resident" has been interpreted by the Hon'ble Supreme Court in several judgments where it has been established that residence does not contemplate a fleeing residence and encompasses more than just a temporary stay and connotes more or less of a permanent character. In such cases, it is necessary to ascertain the actual residence of the minor at the time of commencement of the proceedings rather than solely relying on a legal and constructive residence of such minor where an artificial residence is created in bad faith. The minor child is residing in India on an e-tourist visa which explicitly provide that continuous stay in India during such visit should not exceed 180 days for the sole purpose of meeting friends and relatives. The petitioner had never raised the conduct of the respondent towards the child before the US Court and whatever has been alleged by her is actually an afterthought. Mr. Jauhar has referred to the case of Abhay v. Neha Joshi & Anr. reported in 2023 SCC Online Bom. 1943, Philip David Dexter v. State of NCT of Delhi & Anr. reported in (2013) 135 DRJ 537 (DB), Akhilesh Kumar Gupta v. Gupta Snizhana Grygorivna & Ors. reported in 2024 SCC Online Del. 1877, Jeewanti Pandey v. Kishan Chandra Pandey reported in (1981) 4 SCC 517.
11. The marital relationship between the petitioner and the respondent, as per the petitioner, was tumultuous and encountered choppy waters right from the time of the marriage and this caused the petitioner immense mental and physical FIRST APPEAL NO. 78 OF 2024 12 Neutral Citation 2025:JHHC:36692-DB harm. Marriage counselling sessions failed to have any positive impact on the already unstable relationship between them. The trauma and suffering of the petitioner at the hands of the respondent has been depicted in great details in the application before the learned Family Court. The respondent had continued to torment the petitioner even when she was pregnant and also after childbirth. The petitioner was constrained to file an application for divorce before the Superior Court of California which was registered as D22-01180. During the mediation hearing, since the parties did not come up with any parenting plan, the Court had issued a joint custody order and the custody of the child was to be regularised in the following manner:
"The parties shall follow a 4-3-3-4 schedule with equal 50/50 timeshare as the Court finds it is in the best interest of the minor child. Beginning 8/28/2022: Week 1: Custody to father at Sunday at 9 am through Wednesday at 9 am, then to mother until Saturday at 9 am. Week 2: Custody to father at Saturday at 3pm through Wednesday at 3 pm, then to mother until Sunday at 9 am."
12. Various conditions were imposed by the learned court in the U.S. with respect to the custody of the child and condition no. 15 has been highlighted by the learned counsel for the petitioner which reads as follows:
"The parties will participate in co-parent counseling through COPE completing 12 sessions minimum, to include the Triple P Family Transitions program and at least 7 sessions of conjoint counseling via Zoom, to begin not later than 30 days from the date of the hearing on 8/25/2022.
Neither party will make or allow others to make negative comments about the other parent in the presence of the child, nor the Court process or the other parties past, present or future relationships.
FIRST APPEAL NO. 78 OF 2024 13 Neutral Citation 2025:JHHC:36692-DB No discussions about the proceedings shall occur with the child outside of therapy.
The parties shall communicate directly with one another and the minor shall not be used as a messenger between the parties.
The Child shall not be exposed to violence or abuse in either party's care."
13. The last part of the aforesaid condition has been underscored by the learned counsel for the petitioner since according to the petitioner, the child was subjected to abuse and maltreatment by the respondent during the period the respondent was having the custody of the child pursuant to the order passed by the learned court in the U.S. It is the case of the petitioner that the conditions set forth in the order of the learned court at U.S. were diligently followed by the petitioner for two months. However, as it appears from the records, the petitioner did not present herself at the time of review hearing and the learned court, in such circumstances, made the following orders:
"3. The Court finds that there is good cause to make the following orders:
i. Petitioner Is ordered to Immediately return the parties' minor child, Vindhya Kishore, (DOB 5/19/2019) to Respondent's physical custody In California; ii. Order Respondent to have sole legal custody for the purposes of obtaining and maintaining a passport for the minor child;
iii. All future physical child custody/visitation between the minor child and Petitioner shall be professionally supervised until further order of the Court; iv. Petitioner shall not travel with the minor child except to return the minor child to Respondent in California; v. All financial support, including spousal support and FIRST APPEAL NO. 78 OF 2024 14 Neutral Citation 2025:JHHC:36692-DB child support to Petitioner shall be suspended until at which time Petitioner comes into compliance with Court orders;
vi. The attorney's fees order as made on August 25, 2022 shall be set aside;
vii. The Court finds that the Orders the Court made on 8/25/2022 relating to a request filed by Petitioner were valid orders when made, that Petitioner was present during the hearing, and that she had the ability to comply with the Court's orders - Therein Petitioner willingly and knowingly violated those Court orders;
viii. The Court finds that Petitioner is in violation of the Automatic Temporary Restraining Orders (ATROS) that are contained within the Summons and were binding upon Petitioner at the time she filed for Dissolution of Marriage with this Court;
ix. That Petitioner may be served going forward by email as she has removed herself and the minor child from the United States of America."
14. The term "ordinarily resides" as envisioned in Section 9 of the Guardian and Wards Act, 1890 is of utmost significance and importance and its meaning and purport will be the primary determining factor to decide the lis between the parties. The said terminology finds place in the Guardian and Wards Act, 1890 in the following manner:
"9. Court having jurisdiction to entertain application.--
(1) If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides.
FIRST APPEAL NO. 78 OF 2024 15 Neutral Citation 2025:JHHC:36692-DB (2) If the application is with respect to the guardianship of the property of the minor, it may be made either to the District Court having jurisdiction in the place where the minor ordinarily resides or to a District Court having jurisdiction in a place where he has property.
(3) If an application with respect to the guardianship of the property of a minor is made to a District Court other than that having jurisdiction in the place where the minor ordinarily resides, the Court may return the application if in its opinion the application would be disposed of more justly or conveniently by any other District Court having jurisdiction."
15. What would transpire from the aforesaid is that the jurisdiction of a district court which is confronted with an application of guardianship of a minor will depend on the factor of the ordinary residence of the minor. In the case of Ruchi Majoo v. Sanjiv Majoo reported in (2011) 6 SCC 479, it has been held as follows:
"24. It is evident from a bare reading of the above that the solitary test for determining the jurisdiction of the court under Section 9 of the Act is the "ordinary residence" of the minor. The expression used is "where the minor ordinarily resides".
Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an enquiry into the factual aspects of the controversy.
25. The factual aspects relevant to the question of jurisdiction are not admitted in the instant case. There are serious disputes on those aspects to which we shall presently refer.
FIRST APPEAL NO. 78 OF 2024 16 Neutral Citation 2025:JHHC:36692-DB
26. We may before doing so examine the true purpose of the expression "ordinarily resident" appearing in Section 9(1). This expression has been used in different contexts and statutes and has often come up for interpretation. Since liberal interpretation is the first and the foremost rule of interpretation it would be useful to understand the literal meaning of the two words that comprise the expression. The word "ordinary" has been defined by Black's Law Dictionary as follows:
"Ordinary (adj.).--Regular; usual; normal; common; often recurring; according to established order; settled; customary; reasonable; not characterised by peculiar or unusual circumstances; belonging to, exercised by, or characteristic of, the normal or average individual."
The word "reside" has been explained similarly as under:
"Reside.--Live, dwell, abide, sojourn, stay, remain, lodge. (Western-Knapp Engg. Co. v. Gilbank, F 2d at p.
136.) To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality, to be vested as a right. (Bowden v. Jensen, SW 2d at p. 349.)"
27. In Webster's Dictionary also the word "reside" finds a similar meaning, which may be gainfully extracted:
"1. To dwell for a considerable time; to make one's home; live. 2. To exist as an attribute or quality with in.
3. To be vested: with in."
28. In Annie Besant v. G. Narayaniah the infants had been FIRST APPEAL NO. 78 OF 2024 17 Neutral Citation 2025:JHHC:36692-DB residing in the district of Chingleput in the Madras Presidency. They were given in custody of Mrs Annie Besant for the purpose of education and were getting their education in England at the University of Oxford. A case was, however, filed in the District Court of Chingleput for the custody where according to the plaintiff the minors had permanently resided. Repeating the plea that the Chingleput Court was competent to entertain the application Their Lordships of the Privy Council observed: (IA p. 322) "... The District Court in which the suit was instituted had no jurisdiction over the infants except such jurisdiction as was conferred by the Guardians and Wards Act, 1890. By the 9th section of that Act the jurisdiction of the court is confined to infants ordinarily resident in the district. It is in Their Lordships' opinion impossible to hold that infants who had months previously left India with a view to being educated in England and going to the University of Oxford were ordinarily resident in the district of Chingleput."
29. In Jagir Kaur v. Jaswant Singh this Court was dealing with a case under Section 488 CrPC and the question of jurisdiction of the court to entertain a petition for maintenance. The Court noticed a near unanimity of opinion as to what is meant by the use of the word "resides" appearing in the provision and held that "resides" implied something more than a flying visit to, or casual stay at a particular place. The legal position was summed up in the following words: (AIR p. 1524, para 8) "8. ... Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases thereon, we would define the word 'resides' thus: a person resides in a place if he through choice FIRST APPEAL NO. 78 OF 2024 18 Neutral Citation 2025:JHHC:36692-DB makes it his abode permanently or even temporarily; whether a person has chosen to make a particular place his abode depends upon the facts of each case."
30. In Kuldip Nayar v. Union of India the expression "ordinary residence" as used in the Representation of the People Act, 1950 fell for interpretation. This Court observed:
(SCC p. 96, paras 243-46) "243. Lexicon refers to Cicutti v. Suffolk County Council to denote that the word 'ordinarily' is primarily directed not to duration but to purpose. In this sense the question is not so much where the person is to be found 'ordinarily', in the sense of usually or habitually and with some degree of continuity, but whether the quality of residence is 'ordinary' and general, rather than merely for some special or limited purpose.
244. The words 'ordinarily' and 'resident' have been used together in other statutory provisions as well and as per Law Lexicon they have been construed as not to require that the person should be one who is always resident or carries on business in the particular place.
245. The expression coined by joining the two words has to be interpreted with reference to the point of time requisite for the purposes of the provision, in the case of Section 20 of the RP Act, 1950 it being the date on which a person seeks to be registered as an elector in a particular constituency.
246. Thus, residence is a concept that may also be transitory.
Even when qualified by the word 'ordinarily' the word 'resident' would not result in a construction having the effect of a requirement of the person using a particular place for dwelling always or on permanent uninterrupted basis. Thus understood, even the requirement of a person being FIRST APPEAL NO. 78 OF 2024 19 Neutral Citation 2025:JHHC:36692-DB 'ordinarily resident' at a particular place is incapable of ensuring nexus between him and the place in question.""
17. The aforesaid judgment delves into the question as to whether the jurisdictional facts are admitted or not and if the answer is in the negative, a conclusion cannot be arrived at without having an inquiry into the factual aspects. The case under reference gravitates towards a disputed question of fact which can be deduced from the following:
"36. It is evident from the statements and the pleadings of the parties that the question whether the decision to allow the appellant and Kush to stay back in Delhi instead of returning to America was a voluntary decision as claimed by the appellant or a decision taken by the respondent under duress as alleged by him was a seriously disputed question of facts, a satisfactory answer to which could be given either by the District Court where the custody case was filed or by the High Court only after the parties had been given an opportunity to adduce evidence in support of their respective versions."
18. In the case of Dhanwanti Joshi v. Madhav Unde reported in (1998) 1 SCC 112, it has been held as follows:
"29. However, there is an apparent contradiction between the above view and the one expressed in H. (infants), Re [(1966) 1 All ER 886 : (1966) 1 WLR 381, CA] and in E. (an infant), Re [(1967) 1 All ER 881] to the effect that the court in the country to which the child is removed will send back the child to the country from which the child has been removed. This apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (minors) (wardship :
jurisdiction), Re [(1974) 1 All ER 913, CA] and in R. (minors) (wardship : jurisdiction), Re [ (1981 2 FLR 416 (CA)] . It was held by the Court of Appeal in L., Re [(1974) 1 All ER 913, CA] FIRST APPEAL NO. 78 OF 2024 20 Neutral Citation 2025:JHHC:36692-DB that the view in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942] is still the correct view and that the limited question which arose in the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of (a) a summary inquiry, the court would return custody to the country from which the child was removed unless such return could be shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could go into the merits as to where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child's welfare. The summary jurisdiction to return the child is invoked, for example, if the child had been removed from its native land and removed to another country where, maybe, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, -- for these are all acts which could psychologically disturb the child. Again the summary jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country on the expectation that an early decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed.
FIRST APPEAL NO. 78 OF 2024 21 Neutral Citation 2025:JHHC:36692-DB Alternatively, the said court might think of conducting an elaborate inquiry on merits and have regard to the other facts of the case and the time that has lapsed after the removal of the child and consider if it would be in the interests of the child not to have it returned to the country from which it had been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship : jurisdiction), Re [ (1981 2 FLR 416 (CA)] it has been firmly held that the concept of forum conveniens has no place in wardship jurisdiction.
33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942] unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re [(1974) 1 All ER 913, CA] . As recently as 1996-1997, it has been held in P (A minor) (Child Abduction: Non-Convention Country), Re [(1996) 3 FCR 233, CA] : by Ward, L.J. [1996 Current Law Year Book, pp. 165- 166] that in deciding whether to order the return of a child who has been abducted from his or her country of habitual FIRST APPEAL NO. 78 OF 2024 22 Neutral Citation 2025:JHHC:36692-DB residence -- which was not a party to the Hague Convention, 1980, -- the courts' overriding consideration must be the child's welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's return unless a grave risk of harm was established. See also A (A minor) (Abduction: Non- Convention Country) [Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13]. This answers the contention relating to removal of the child from USA."
19. This judgment considers the welfare of the child as the predominant factor in deciding the issue and the court has been given an alternative to the effect that the court might think of conducting an elaborate inquiry on merits and have regards to the other facts of the case and the time that have lapsed after the removal of the child and consider if it would be in the interest of the child not to have it returned to the country from which it had been removed. This, according to the learned counsel for the petitioner, presupposes the welfare of the child and since the child is staying in Jamshedpur after coming back from U.S.A. and having adopted to the culture, ambience and other necessary factors for its growth, the child can be said to be "ordinarily residing" in Jamshedpur. The welfare of the child has also been taken into consideration in the case of Jasmeet Kaur v. Navtej Singh reported in (2018) 4 SCC 295, wherein it has been held as follows:
"4. In view of the above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of the child. The same cannot be the subject- matter of final determination in proceedings under Order 7 Rule 11 CPC."
FIRST APPEAL NO. 78 OF 2024 23 Neutral Citation 2025:JHHC:36692-DB
20. It has also been held in the aforesaid judgment that the interest of the child cannot be the subject matter of final determination in proceedings under Order 7 Rule 11 CPC.
21. In Nithya Anand Raghavan v. State (NCT of Delhi) & Anr. reported in (2017) 8 SCC 454, it has been held as under:
"39. We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court. We may usefully refer to the decision in Dhanwanti Joshi v. MadhavUnde [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] . In paras 28 to 30, 32 and 33 of the reported decision, the Court observed thus : (SCC pp. 124-27) "28. The leading case in this behalf is the one rendered by the Privy Council in1951, in McKee v. McKee [McKee v. McKee, 1951 AC 352 (PC)] . In that case, the parties, who were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to custody before the Canadian Court, the welfare and happiness of the infant was of FIRST APPEAL NO. 78 OF 2024 24 Neutral Citation 2025:JHHC:36692-DB paramount consideration and the order of a foreign court in USA as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. "Comity of courts demanded not its enforcement, but its grave consideration." This case arising from Canada which lays down the law for Canada and UK has been consistently followed in latter cases. This view was reiterated by the House of Lords in J. v. C. [J. v. C., 1970 AC 668 : (1969) 2 WLR 540 (HL)] This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis [Khamis v. Khamis, (1978) 4 Fam LR 410 (Full Court, Australia)] .)
29. However, there is an apparent contradiction between the above view and the one expressed in H. (Infants), In re [H. (Infants), In re, (1966) 1 WLR 381 : 1965 H. No. 2428 : (1966) 1 All ER 886 (CA)] and in E. (An Infant) [E. (An Infant), In re, 1967 Ch 761 : (1967) 2 WLR 1370 (CA)] , to the effect that the court in the country to which the child is removed will send back the child to the country from which the child has been removed. This apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (Minors) (Wardship :
Jurisdiction) [L. (Minors) (Wardship : Jurisdiction), In re, (1974) 1 WLR 250 (CA)] and in R. (Minors) (Wardship : Jurisdiction) [R. (Minors) (Wardship : Jurisdiction), In re, (1981) 2 Fam LR 416 (CA)] . It was held by the Court of Appeal in L., In re [L. (Minors) (Wardship : Jurisdiction), In re, (1974) 1 WLR 250 (CA)] that the view in FIRST APPEAL NO. 78 OF 2024 25 Neutral Citation 2025:JHHC:36692-DB McKee v. McKee [McKee v. McKee, 1951 AC 352 (PC)] is still the correct view and that the limited question which arose in the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry, or (b) an elaborate inquiry on the question of custody.
In the case of (a) a summary inquiry, the court would return custody to the country from which the child was removed unless such return could be shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could go into the merits as to where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child's welfare. The summary jurisdiction to return the child is invoked, for example, if the child had been removed from its native land and removed to another country where, maybe, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education--for these are all acts which could psychologically disturb the child. Again the summary jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country on the expectation that an early decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed. Alternatively, the said court FIRST APPEAL NO. 78 OF 2024 26 Neutral Citation 2025:JHHC:36692-DB might think of conducting elaborate inquiry on merits and have regard to the other facts of the case and the time that has lapsed after the removal of the child and consider if it would be in the interests of the child not to have it returned to the country from which it had been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family Law, 7th Edn., 1987.) In R. (Minors) (Wardship : Jurisdiction) [R. (Minors) (Wardship : Jurisdiction), In re, (1981) 2 Fam LR 416 (CA)] , it has been firmly held that the concept of forum convenience has no place in wardship jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw v. Arvind M. Dinshaw [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] , while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts--which were independently considered--it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother's application in India were within six months. In that context, this Court referred to H. (Infants), In re [H. (Infants), In re, (1966) 1 WLR 381 : 1965 H. No. 2428 : (1966) 1 All ER 886 (CA)] which case, as pointed out by us above has been explained in L., In re [L. (Minors) (Wardship : Jurisdiction), In re, (1974) 1 WLR 250 (CA)] as a case where the Court thought it fit to exercise its summary FIRST APPEAL NO. 78 OF 2024 27 Neutral Citation 2025:JHHC:36692-DB jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee [McKee v. McKee, 1951 AC 352 (PC)] and J. v. C. [J. v. C., 1970 AC 668 : (1969) 2 WLR 540 (HL)] and the distinction between summary and elaborate inquiries as stated in L. (Minors), In re [L. (Minors) (Wardship : Jurisdiction), In re, (1974) 1 WLR 250 (CA)] , are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore, nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984--even assuming that the earlier orders passed in India do not operate as constructive res judicata.
32. In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been "wrongfully" removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to a central authority. Under Article 16 of the Convention, if in the process, the issue goes before a court, the Convention prohibits the court from going into the merits of the welfare of the child. Article 12 requires the child to be sent back, but if a period of more than one year has lapsed from the date of removal to the date of commencement of the proceedings before the court, the child would still be returned unless it is demonstrated that the child is now settled in its new environment. Article 12 is subject to Article 13 and a return could be refused if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the FIRST APPEAL NO. 78 OF 2024 28 Neutral Citation 2025:JHHC:36692-DB child is quite mature and objects to its return. In England, these aspects are covered by the Child Abduction and Custody Act, 1985.
33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee [McKee v. McKee, 1951 AC 352 (PC)] unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., In re [L. (Minors) (Wardship : Jurisdiction), In re, (1974) 1 WLR 250 (CA)] . As recently as 1996-1997, it has been held in P. (A Minor) (Child Abduction : Non- Convention Country), In re [P. (A Minor) (Child Abduction :
Non-Convention Country), In re, 1947 Fam 45 : (1997) 2 WLR 223 (CA)] by Ward, L.J. [1996 Current Law Year Book, pp.
165-166] that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence--which was not a party to the Hague Convention, 1980--the courts' overriding consideration must be the child's welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's return unless a grave risk of harm was established. See also A. (A Minor) (Abduction : Non- Convention Country), In re [A. (A Minor) (Abduction : Non- Convention Country), In re The Times, 3-7-1997 (CA)] [by Ward, L.J. (quoted in Current Law, August 1997, p. 13]. This answers the contention relating to removal of the child from USA."
FIRST APPEAL NO. 78 OF 2024 29 Neutral Citation 2025:JHHC:36692-DB
40. The Court has noted that India is not yet a signatory to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As regards the non- Convention countries, the law is that the court in the country to which the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importance and reckon the order of the foreign court as only a factor to be taken into consideration, unless the court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare. In exercise of summary jurisdiction, the court must be satisfied and of the opinion that the proceeding instituted before it was in close proximity and filed promptly after the child was removed from his/her native state and brought within its territorial jurisdiction, the child has not gained roots here and further that it will be in the child's welfare to return to his native state because of the difference in language spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons. In such a case the court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign court by directing return of the child. Be it noted that in exceptional cases the court can still refuse to issue direction to return the child to the native state and more particularly in spite of a pre-existing order of the foreign court in that behalf, if it is satisfied that the child's return may expose him to a grave risk of harm. This means that the courts in India, within whose jurisdiction the minor has been brought must "ordinarily" consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre-existing order of the foreign court if any as only one of the factors and FIRST APPEAL NO. 78 OF 2024 30 Neutral Citation 2025:JHHC:36692-DB not get fixated therewith. In either situation--be it a summary inquiry or an elaborate inquiry--the welfare of the child is of paramount consideration. Thus, while examining the issue the courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. We are in respectful agreement with the aforementioned exposition.
41. Notably, the aforementioned exposition has been quoted with approval by a three-Judge Bench of this Court in V. Ravi Chandran (2) [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] as can be discerned from para 27 of the reported decision. In that case, after extracting paras 28 to 30 of the decision in Dhanwanti Joshi case [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] , the three-Judge Bench observed thus : [V. Ravi Chandran (2) case [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] , SCC p. 194] "27. ... However, in view of the fact that the child had lived with his mother in India for nearly twelve years, this Court held that it would not exercise a summary jurisdiction to return the child to the United States of America on the ground that its removal from USA in 1984 was contrary to the orders of US courts. It was also held that whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest of the minor." Again in paras 29 and 30, the three-Judge Bench observed thus : (SCC pp. 195-96) FIRST APPEAL NO. 78 OF 2024 31 Neutral Citation 2025:JHHC:36692-DB "29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.
30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interests of the child. The indication given in McKee v. McKee [McKee v. McKee, 1951 AC 352 (PC)] that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the FIRST APPEAL NO. 78 OF 2024 32 Neutral Citation 2025:JHHC:36692-DB merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child has been explained in L. (Minors), In re [L. (Minors) (Wardship : Jurisdiction), In re, (1974) 1 WLR 250 (CA)] and the said view has been approved by this Court in Dhanwanti Joshi [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] . Similar view taken by the Court of Appeal in H. (Infants), In re [H. (Infants), In re, (1966) 1 WLR 381 : 1965 H. No. 2428 :
(1966) 1 All ER 886 (CA)] has been approved by this Court in Elizabeth Dinshaw [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] ."
42. The consistent view of this Court is that if the child has been brought within India, the courts in India may conduct :
(a) summary inquiry; or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre-existing order of return of the child by a foreign court. In an elaborate inquiry, the court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre-existing order of the foreign court for return of the child as only one of the circumstances. In either case, the crucial question to be considered by the court (in the country to which the child is removed) is to answer the issue according to the child's welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently. Even on close scrutiny of the several decisions pressed before us, we do not find any contra view FIRST APPEAL NO. 78 OF 2024 33 Neutral Citation 2025:JHHC:36692-DB in this behalf. To put it differently, the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native State.
63. As regards the fourth factor noted in clause (d) of para 56, Surya Vadanan case [Surya Vadanan v. State of T.N., (2015) 5 SCC 450 : (2015) 3 SCC (Civ) 94] , we respectfully disagree with the same. The first part gives weightage to the "first strike" principle. As noted earlier, it is not relevant as to which party first approached the court or so to say "first strike" referred to in para 52 of the judgment. Even the analogy given in para 54 regarding extrapolating that principle to the courts in India, if an order is passed by the Indian Court is inapposite. For, the Indian Courts are strictly governed by the provisions of the Guardians and Wards Act, 1890, as applicable to the issue of custody of the minor within its jurisdiction.
66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi case [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] , in relation to non-Convention countries is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of FIRST APPEAL NO. 78 OF 2024 34 Neutral Citation 2025:JHHC:36692-DB the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration. While considering that aspect, the court may reckon the fact that the child was abducted from his or her country of habitual residence but the court's overriding consideration must be the child's welfare.
69. We once again reiterate that the exposition in Dhanwanti Joshi [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] is a good law and has been quoted with approval by a three- Judge Bench of this Court in V. Ravi Chandran (2) [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] . We approve the view taken in Dhanwanti Joshi [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] , inter alia, in para 33 that so far as non-Convention countries are concerned, the law is that the court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration. The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, for these are all acts which could psychologically disturb the child. Again, the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child.".
22. Nithya Anand Raghavan (supra) has approved the view FIRST APPEAL NO. 78 OF 2024 35 Neutral Citation 2025:JHHC:36692-DB taken in Dhanwanti Joshi (supra) that so far as non-convention countries are concerned, the court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and also consider the order of the foreign court as only a factor to be taken into consideration. A rider has been put to the effect that the summary jurisdiction to return the child be exercised in cases where the child is forced with various obstructions in terms of language, societal customs and subjected to a foreign system of education which is alien to the child and which could psychologically affect the child. The order in Nityanand Raghavan (supra) was passed in a case of habeas corpus initiated by the mother of the child to be produced.
23. According to Ms. Rajkotia, the question of residence is largely a question of intention and reference in this context is made to the case of Ram Sarup v. Chimman Lal reported in AIR 1952 All 79, wherein it has been held as under:
"5. Admittedly, in this case the children are very young and they have been living with their mother. They were no doubt, until their mother left their father, living in Chandausi which is in Moradabad district. It is not disputed that after her departure from Chandausi they have been living with her at Hathras. In these circumstances in this particular case an inevitable conclusion to which I am driven is that their ordinary place of residence is at the moment Hathras. When a person leaves his place, where he has been residing as a permanent resident, for good, i.e., with no intention to come back to it and goes to some other place to live there, the former place where he used to live ceases to be his ordinary place of residence. The latter place becomes his ordinary place of residence. The question of residence is largely a question of intention. In the case of minors, no question of FIRST APPEAL NO. 78 OF 2024 36 Neutral Citation 2025:JHHC:36692-DB intention arises. But the Court will take into consideration their actual place of residence at the time of the application and regard that as their ordinary place of residence.
6. I, therefore, hold that inasmuch as the children are living with their mother, their place of residence at the time the application was presented was Hathras."
24. We may, at this juncture, revert back to the litigations between the parties more particularly to the writ of habeas corpus filed by the respondent before the Karnataka High Court being W.P. (HC) No. 43 of 2023 wherein a prayer was made to trace out and produce the minor child Vindhya Kishore and restore and handover the legal and physical custody of the child to the respondent. The said writ application was dismissed on 20-02-2023 on the following grounds:
"33. After hearing the learned Senior Advocates on both sides, keeping in view the welfare of the child in mind, we heard the parties and their learned Senior Advocates in chamber on 18.11.2023. They reiterated their versions. elaborately which included allegations against each other and their interpersonal relation which are not part of the record. In our view, it is not desirable to place those versions verbatim in public domain. Suffice to record that Vindhya's demeanor firmly disclosed that she was comfortable only with her mother.
34. It was also contended on behalf of Kishore that he is well placed financially and he would make necessary arrangements for Abhilasha and the child. It was assured that Kishore would make all efforts to mitigate the consequences of violation of the Foreign Court's order.
35. Similarly, Abhilasha also submitted that she shall have no objection for Kishore to visit Vindhya in Jamshedpur and also communicate on phone.
FIRST APPEAL NO. 78 OF 2024 37 Neutral Citation 2025:JHHC:36692-DB
36. Keeping in view the welfare of Vindhya, in our considered opinion, Vindhya being a four-year-old girl child, it would be in her best interest to remain in the custody of her mother.
37. Though, the husband may be financially well placed, in the facts and circumstances of this case and the bitter hostility between the couple, in our considered view, it would not be appropriate to compel Abhilasha to move to the USA. However, it is open for the parties to work out their rights with regard to custody of child and visitation rights separately. We trust and hope that Vindhya shall have the benefit of love and affection of both parents and they shall endeavour to achieve this goal."
25. Mr. Prabhjit Jauhar, learned counsel for the respondent has placed reliance in the case of Lahari Sakhamuri v. Sobhan Kodali reported in (2019) 7 SCC 311 which according to him greatly resemble the facts of the present case. The relevant paragraph reads as follows:
"31. In the given facts and circumstances, we find no difficulty in upholding the opinion of the High Court that the minor children were not ordinary residents of Hyderabad (India) as envisaged under Section 9(1) of the Guardians and Wards Act, 1890. Resultantly, the application for custody of minor children filed before the Family Court, Hyderabad is rightly rejected by the High Court in exercise of power under Order 7 Rule 11 CPC. At the same time, when the orders have been passed by the US court, the parties cannot disregard the proceedings instituted before the US court filed at the instance of the appellant (Lahari Sakhamuri) who is supposed to participate in those proceedings.
32. The judgment relied upon by the learned counsel for the appellant of Jasmeet Kaur case [Jasmeet Kaur v. Navtej FIRST APPEAL NO. 78 OF 2024 38 Neutral Citation 2025:JHHC:36692-DB Singh, (2018) 4 SCC 295 : (2018) 3 SCC (Civ) 71] may not be of any assistance for the reason that it was a case where one of the child was born in India which was one of the reason prevailed upon this Court to hold that principle of comity of courts or principle of forum convenience cannot determine the threshold bar of jurisdiction and when paramount consideration is the best interest of the child, it can be the subject-matter of final determination in proceedings and not under Order 7 Rule 11 CPC. In our considered view, the application for custody of minor children filed at the instance of the appellant was rightly rejected by the High Court under the impugned judgment, in consequence thereof, no legal proceedings in reference to custody of the minor children remain pending in India.
33. The custody of minor children has been considered difficult in adjudication by the courts apart from raising delicate issues, especially when the spouses are non-
resident Indians (NRIs).
34. This Court in Surinder Kaur Sandhu case [Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 :
1984 SCC (Cri) 464] was concerned with the custody of a child who was British citizen by birth whose parents had been settled in England after their marriage. The child was removed by the husband from the house and was brought to India. The wife obtained a judicial order from the UK court whereby the husband was directed to hand over the custody of the child to her. The said order was later confirmed by the court of England and thereafter the wife came to India and filed a writ petition in the High Court of Punjab and Haryana praying for custody and production of the child which came to be dismissed against which the wife appealed to this Court. This Court keeping in view the "welfare of the child", FIRST APPEAL NO. 78 OF 2024 39 Neutral Citation 2025:JHHC:36692-DB "comity of courts" and "jurisdiction of the State which has most intimate contact with the issues arising in the case"
held thus: (Surinder Kaur Sandhu case [Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 : 1984 SCC (Cri) 464] , SCC pp. 702-03, para 10) "10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum- shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well- being of the spouses and the welfare of the offspring of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, FIRST APPEAL NO. 78 OF 2024 40 Neutral Citation 2025:JHHC:36692-DB establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Co. v. State of Washington [International Shoe Co. v. State of Washington, 1945 SCC OnLine US SC 158 : 90 L Ed 95 : 326 US 310 (1945)] , which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy."
47. It is not in dispute that both the minor children, from the very inception of their birth, till removal from the US on 23- 3-2017 were living with their parents in the US. This fact was admitted by the appellant (Lahari Sakhamuri) also in the guardianship petition filed before the Family Court, Hyderabad and also in the divorce and custody petition filed by her in the US and only after hearing the learned counsel for the parties, order was passed by the US court on 22-5- 2017 on the emergency custody petition granting temporary physical custody of the children with further direction to the appellant (Lahari Sakhamuri) to return along with the children to the jurisdiction of the US court on 2-6-2017. In case she was aggrieved by the order dated 22-5-2017 passed by the US court after affording an opportunity of hearing which she contested through her Attorney, all the courses were available to her to assail the order of the Court. Since the appellant (Lahari Sakhamuri) failed in returning the children to the jurisdiction of the US court despite order FIRST APPEAL NO. 78 OF 2024 41 Neutral Citation 2025:JHHC:36692-DB dated 22-5-2017, there was no option left with the respondent (Sobhan Kodali) but to file a habeas corpus petition and pray that the children be repatriated back to the US in compliance of the order of the US court.
48. It is true that this Court has to keep in mind the best interest of the child as the paramount consideration. The observations of the US court clearly show that principle of welfare of the children has been taken into consideration by the US court in passing of the order as it reiterates that both the parties are necessary for proper upbringing of the children and the ultimate decision of custody and guardianship of the two minor children will be taken by the US which has the exclusive jurisdiction to take the decision as the children happen to be US citizens and further order has been passed on the respondent's emergency petition with special release in custody on 9-3-2018 permitting the respondent (Sobhan Kodali) to apply for US passports on behalf of the minor children without the appellant (Lahari Sakhamuri) being mother's consent. The appellant (Lahari Sakhamuri) cannot disregard the proceedings instituted at her instance before the US court and she must participate in those proceedings by engaging solicitors of her choice to espouse her cause."
26. Mr. Jauhar has also referred to the case of Paul Mohinder Gahun v. Selina Gahun reported in 2006 SCC Online Del 675, wherein it has been held as follows:
"17. The first premise on which the Guardian Judge has acted that the child was not stealthily removed from the custody of the petitioner is itself erroneous. It was never disclosed to the petitioner that the respondent was permanently coming back to India with the child. The material placed on record leaves no manner of doubt that FIRST APPEAL NO. 78 OF 2024 42 Neutral Citation 2025:JHHC:36692-DB the respondent came back to India with the child with return tickets on a short visit. Once the respondent came to India she disclosed her intentions which may have been in her mind even earlier. Thus, it is certainly an attempt by the respondent to remove the child from the jurisdiction of the Canadian Courts.
22. Learned counsel for the petitioner has emphasised on the observations made by the Supreme Court in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw & Anr., (1987) SCC 42. The facts of the case were that the custody of a minor after divorce in USA was granted to the mother with visitation rights to the father of the child. The father secretly brought the child to India against the express orders of the American Court. It was held that the mother was entitled to the child's custody with liberty to take the child to the USA and the father may instead of tendering an unconditional apology before the Supreme Court of India tender an apology before the American Court for restoration of visitation rights. The Supreme Court referred to the judgement in Re H. (infants) (1966) 1 AllER 886 where Courts made the following observations:
"9. In Re H. (infants) [(1966) 1 All ER 886], the Court of Appeal in England had occasion to consider a somewhat similar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural-born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America they were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two boys to the mother with liberal access to the father. By an amendment made in that order in December 1964, a provision was incorporated that the boys FIRST APPEAL NO. 78 OF 2024 43 Neutral Citation 2025:JHHC:36692-DB should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the American court was the proper court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the court without going into the merits of the question as to where and with whom the children should live, would order that the children/should go back to America. In the appeal filed against the said judgement in the Court of Appeal, Willmer L.J. while dismissing the appeal extracted with approval the following passage from the judgement of Cross, J. [(1965) 3 All ER at p. 912.]: The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they Can to ensure that the wrongdoer does not gain an advantage by his wrongdoing. The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self help for due process of law in this field can only harm the interests of wards generally, and a judge should, as I see it, pay regard to the orders of the proper foreign court unless he is FIRST APPEAL NO. 78 OF 2024 44 Neutral Citation 2025:JHHC:36692-DB satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."
24. The legal position which thus emerges is that the Court frowned upon any unauthorised removal of the child from one country to another. This has become a frequent occurrence and the courts must endeavour to ensure that the wrong doer does not gain advantage by his wrong doing. This is, of course, subject to the condition that there should not be any serious harm to the child. In the present case, unlike some of the cases referred to, it is the mother who decided to take the child outside the custody of the Court where the child "ordinarily resides", That itself would not make a difference. The love and affection of the petitioner for the child is not even doubted by the respondent as is apparent by the E-mails. It is the own personal conflict of the respondent with the petitioner. It is not the function of this Court in the present proceedings to decide about giving the custody of the child to the father or to the mother. That is the factor to be considered by the court of competent jurisdiction. The only factor to be examined is as to which court is authorised and best suited to determine the controversy. In my considered view, it is the Courts in Canada which would have jurisdiction in the matter.
26. I am afraid this cannot be a submission to be accepted where the child has been stealthily removed to India. The child was happy during the first five years of residence in Canada. No doubt a child is extremely adaptable at this age and it is not as if the child cannot adjust in India to the Indian circumstances. That is, however, not the only factor. Apart from any other reason one cannot lose sight of the fact that the child is in a boarding school and not being personally looked after by the respondent. This is not to cast FIRST APPEAL NO. 78 OF 2024 45 Neutral Citation 2025:JHHC:36692-DB a doubt on the intention of the respondent but to bring forth that a child adjusts to any situation and the fact to be considered by this Court is as to which Court would be appropriate to determine the interest of the child.
29. As noticed above the present case is one of the issue of jurisdiction and it is open to the respondent to approach the competent courts in Canada, which is what she initially intended to do as disclosed in her E-mail to claim her rights for the custody of the child so that the welfare of the child certainly is not adversely affected by such a process.
32. The parties in the present case were equally well placed and both employed. It is the normal wear and tear of marriage which has taken a large toll in the present case. The respondent stealthily removed the child to India without disclosing her intention that her short trip would actually be a one-way ticket. The child spent five formative years in Canada and the last 21/2 years in Delhi due to the petition filed by the respondent within about a month of her decision to stay back in Delhi. The child at the age of about 8 years is in a boarding school. In my considered view, the child cannot be said to be one who "ordinarily resides" in Delhi when the petition was filed nor are the interests of the child adversely affected if the Guardian Court determine the issue of custody where the child resided for five years before her removal to Delhi."
27. As we have noted above, the child Vindhya was born to the petitioner and the respondent in the United States of America and had resided there for three years before being stealthily removed by the petitioner to India despite an order of the court at US giving joint custody to the parties. The order of the U.S. court has been blatantly flouted by the petitioner and preferring a suit for guardianship in India would amount to forum FIRST APPEAL NO. 78 OF 2024 46 Neutral Citation 2025:JHHC:36692-DB shopping. Once the jurisdiction has vested with the Court in U.S.A. with respect to the custody of the child and that too at the instance of the petitioner invoking the same, jurisdiction in the country in which the child has been removed will be against the settled principles of law. The petitioner has alleged child abuse on the part of the respondent and such feature would have been brought to the notice of the Court at U.S. during the review hearing or otherwise but the petitioner shied away from approaching the Court at U.S. and instead preferred an application for custody in India. The petitioner, as per her own version, had secured a job in the U.S. and she was not in such dire straits which necessitated her return to India. The petitioner has brought on record various documents to suggest that the child is ordinarily residing at Jamshedpur and, therefore, the suit for guardianship filed by her is maintainable. This assertion cannot wither away the period spent by the child in the U.S. where she was born and had become accustomed to the environment which would have led to the physical and psychological growth of the child. Uprooting the child from a recognized place to a totally alien terrain and making a claim that the child is ordinarily residing at Jamshedpur to attract Section 9 of the Guardian and Wards Act, 1890 would be a fallacious argument and would be against the spirit of the said provision. There also cannot be any doubt that there is no disputed question of jurisdiction to invoke an enquiry by leading evidence. The learned trial court in its impugned order dated 16-02-2024 had dismissed the suit as being barred by law and without there being any cause of action.
28. Ms. Rajkotia, learned counsel for the petitioner has in course of her submission referred to the various paragraphs of the impugned order to suggest that the order is contradictory in nature. It is no doubt true that the learned family court has kept FIRST APPEAL NO. 78 OF 2024 47 Neutral Citation 2025:JHHC:36692-DB the interest of the child in a pedestal and rightly so and thereafter has delved into the fundamentals of the case. The welfare of the child, in any circumstances, is of paramount importance and there can be no qualms about the same. However, such welfare has to be gathered from the surrounding circumstances and on a careful dissection of the same and which has been recorded above by us we come to the conclusion that the order passed by the learned Principal Judge, Family Court, Jamshedpur in Original Suit No. 408 of 2023 dated 16-02-2024 does not suffer from any infirmity and consequently, we dismiss this appeal.
29. Pending I.A.s, if any, stands closed.
(RONGON MUKHOPADHYAY, J.) (PRADEEP KUMAR SRIVASTAVA, J.) Jharkhand High Court, Ranchi Dated the 02nd Day of December, 2025 Preet/N.A.F.R. Uploaded on: 10 /12 /2025 FIRST APPEAL NO. 78 OF 2024 48