High Court Rules Child's Residence Cannot Be Changed by One Parent in Custody Feud

The High Court has ruled that a minor child's ordinary place of residence does not automatically change when one parent relocates the child during a matrimonial or custody dispute, upholding the jurisdiction of the Family Court in Bengaluru.

A Division Bench comprising Justice DK Singh and Justice H Shanthi Bhushan made the ruling while allowing an appeal filed by a mother seeking custody of her minor son. The court stated that a parent cannot defeat the jurisdiction of a court simply by removing a minor from the location where they had ordinarily resided.

The mother had initially approached the Family Court in Bengaluru under Section 7 of the Guardians and Wards Act, 1890, alongside provisions of the Family Courts Act and Section 151 of the Code of Civil Procedure. However, the Bengaluru Family Court returned her petition and instructed her to file it before the court having jurisdiction over Ilkal Taluk in Bagalkot district, where the father had taken the child.

Challenging the Family Court's decision, the mother argued before the High Court that the child had been ordinarily residing with her in Bengaluru. She stated that the father had taken the child to Ilkal on the assurance that he would return him within 15 days, and that she had never voluntarily surrendered custody. She contended that a unilateral stay in Ilkal could not alter the child's ordinary residence or strip the Bengaluru court of its jurisdiction.

The father argued that the child was actively residing with him in Ilkal Taluk and that Section 9 of the Guardians and Wards Act mandated filing the petition where the minor currently lived, maintaining that his custody was not unlawful.

Rejecting the father's argument, the High Court bench noted that determining territorial jurisdiction based solely on a child's subsequent physical location would permit the parent who removes the child to choose the legal forum. The bench emphasised that Section 9 refers to ordinary residence rather than the temporary location where a child happens to be when a petition is filed, stating that courts must examine where the child would have continued to live had they not been removed.