The Delhi High Court ruled that a parent cannot claim Delhi as a child’s “ordinary residence” after forcibly bringing the child from abroad. The Court ordered the mother to return the U.S.-born minor child to Arizona, reaffirming that custody must follow the child’s true home and welfare.
NEW DELHI: The Delhi High Court, in Sunaina Rao Kommineni v. Abhiram Balusu, made it clear that forcefully bringing a minor child to India from abroad cannot change their “ordinary residence”.
The Bench of Justice Navin Chawla and Justice Renu Bhatnagar delivered this significant judgment on 28 May 2025, directing the mother to return the U.S.-born child to Arizona, USA, where both parents were settled.
The Court stated —
“For invoking the jurisdiction of the Family Court under the G&W Act, it has to be shown that the minor ‘ordinarily resides’ within its jurisdiction. The forceful removal of a minor child from his original place of residence and shifting him to a new residence will not make him an ordinary resident of the new place.”
Case Background
Sunaina Rao Kommineni and Abhiram Balusu were married in 2013 in Vijayawada and later settled in Arizona, USA. Their son was born there in 2017, making him an American citizen. The couple came to India in November 2022 for a short vacation and were to return to the USA in January 2023.
However, upon landing in Delhi, the wife took the child away from the husband with airport security’s help and stayed back in India.
Subsequently, she filed a series of cases in Delhi, including under the Protection of Women from Domestic Violence Act and a Guardianship Petition under the Guardians and Wards Act, 1890. The husband approached the Arizona Superior Court, which granted him custody and directed the wife to return the child to the USA.
Delhi High Court’s Observations
The Court noted that both parents were Green Card holders, settled permanently in the USA, and the child had been living and schooling there until the mother’s unilateral act of removal.
The Bench stressed that the welfare of the child is paramount and cannot be determined by either parent’s wishes. It held that the child’s home, education, citizenship, and comfort were rooted in the USA.
The judgment explained that —
“The forceful removal of a minor child from his original place of residence and shifting him to a new residence will not make him an ordinary resident of the new place.”
The Court further observed that —
“A residence by compulsion, howsoever long, cannot be treated as a place of ordinary residence. Where the child is removed by mischief to an interim location, the place of his/her original residence would alone have jurisdiction.”
It also underlined that even temporary residence cannot be illegal or forced, and that a parent’s unilateral decision cannot determine jurisdiction under Section 9 of the Guardians and Wards Act.
Court’s Directions
The Bench ruled in favour of the father and issued detailed directions for compliance:
- The mother must return to Arizona, USA, along with the minor child on or before 1 July 2025.
- She must inform the father of her decision by 15 June 2025.
- If she agrees to return, the husband will bear all travel and living expenses, allow her to stay in their previous residence, and pay USD 2000 per month as maintenance for her and the child.
- If the wife refuses to return, she must hand over the child’s custody to the father in the Delhi High Court on 2 July 2025.
- The police will assist the father in retrieving the child if required.
- The mother must surrender the child’s U.S. passport and complete withdrawal formalities from the Delhi school.
- The father will re-admit the child in the U.S. school to ensure continuity in education.
Legal Significance
The Court drew upon Supreme Court precedents like Surinder Kaur Sandhu v. Harbax Singh Sandhu, Lahari Sakhamuri v. Sobhan Kodali, and Yashita Sahu v. State of Rajasthan, which emphasize that the child’s best interest lies in stability, not jurisdictional manipulation.
The ruling reinforces the principle that a foreign-born child’s habitual residence cannot be altered by one parent’s unilateral action, especially when a competent foreign court has already ruled on custody.
Conclusion
This judgment sends a strong message that Indian courts will not encourage international child custody violations disguised as relocation or “protection.” The child’s habitual home and welfare will take precedence over parental disputes.
As the Court concluded,
“Such forceful removal/detention, even by a parent, at a place that is not the natural habitation of the minor child, would not render such other place the ordinary place of residence of the minor child.”
Explanatory Table of Laws and Sections Mentioned
| Law / Statute | Section(s) | Purpose / Context in the Case | Court’s Observation / Relevance |
|---|---|---|---|
| Guardians and Wards Act, 1890 | Sections 7, 8, 9, 25 | The wife filed a Guardianship Petition under these sections before the Family Court seeking custody of the child. | The Court held that under Section 9, jurisdiction arises only where the minor ordinarily resides. Forceful removal of the child to Delhi does not make Delhi the child’s ordinary residence. |
| Code of Civil Procedure, 1908 | Order VII Rule 11 | Husband sought rejection of the Guardianship Petition for lack of territorial jurisdiction. | Family Court rightly rejected the petition under this provision, as the cause of action was not within Delhi. |
| Protection of Women from Domestic Violence Act, 2005 | Section 12 | Wife had filed a domestic violence complaint in Delhi, claiming residence there. | Delhi HC observed that her residence claim for DV purposes cannot extend to child custody jurisdiction under G&W Act. |
| Hindu Marriage Act, 1955 | Section 13(1)(ia) | Wife filed a divorce petition citing cruelty. | Mentioned in factual background; not directly relevant to custody ruling. |
| Indian Constitution – Article 226 | — | Husband filed Writ of Habeas Corpus seeking return of minor. | Court held that writ is maintainable even when the other parent detains the child unlawfully. |
| Superior Court of Arizona (U.S. Jurisdiction) | — | Passed custody orders recognizing the father as the primary residential parent. | Delhi HC upheld this, respecting comity of courts and the child’s habitual residence. |
Case Summary
- Case Title: Sunaina Rao Kommineni v. Abhiram Balusu
- Connected Matter: W.P.(Crl.) 912/2023 – Abhiram Balusu v. State (Govt. of NCT of Delhi) & Ors.
- Case Numbers: MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023
- Court: High Court of Delhi at New Delhi
- Bench: Hon’ble Mr. Justice Navin Chawla and Hon’ble Ms. Justice Renu Bhatnagar
- Reserved On: 13 May 2025
- Pronounced On: 28 May 2025
- Appellant/Wife: Smt. Sunaina Rao Kommineni
- Respondent/Husband: Mr. Abhiram Balusu
- Counsel for Wife: Mr. Jai Sahai Endlaw, Ms. Charu Dalal, Mr. Choudhary Amit Bassoya, Ms. Simran Johar
- Counsel for Husband: Mr. Prabhjit Jauhar, Mr. Aadarsh Kothari, Ms. Sahej Kataria
- Counsel for State (R-4): Mr. Rinku Garg, Mr. M.K. Kunal Narang, Mr. Manik Rai Bhalla, Mr. Prashant Dahiya, Mr. Jitender Singh
- Originating Court Order Challenged: Family Court-01, Saket, Delhi – Order dated 15 April 2024 in G.P. No. 27/2023
- Foreign Court: Superior Court, Maricopa County, Arizona, USA
- Outcome: Wife’s appeal dismissed; husband’s writ petition allowed; direction for return of minor child to USA
- Date of Return Fixed: Wife to return with child by 1 July 2025, else hand over custody on 2 July 2025 before Registrar General, Delhi HC
Why This Case Matters
- Establishes that habitual residence cannot be changed unilaterally by one parent through force or deceit.
- Reinforces international comity of courts and respect for valid foreign custody orders.
- Clarifies jurisdiction under Section 9 of the Guardians and Wards Act, crucial for cross-border custody disputes.
- Sets precedent for cases where parents bring children from abroad to India during marital discord.
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