A reading of the above would show that, 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. {Para 42}
43. In Lahari Sakhamuri (supra), where the child was born in the USA and was brought to India by the appellant therein despite an interim order of the USA Court, and an application for the custody of the minor child was filed in the learned Family Court at Hyderabad within 20 days of her arrival in India, the Court held that the minor child was not an ordinary resident of Hyderabad (India), as envisaged under Section 9(1) of the G&W Act.
44. This Court in Paul Mohinder Gahun (supra), while considering a case where the respondent therein had come to India along with the child for a planned short vacation and, thereafter, filed a petition under Section 9 of the G&W Act in India, held 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.
45. In Philip David Dexeter (supra), the Court emphasized that to ordinarily reside at a place should be more than a flying visit to or a casual stay at a particular location.
47. As noted hereinabove, 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.
48. While it is correct that for purposes of invoking jurisdiction under Section 9 of the G&W Act, it is not necessary for the child to be a permanent resident of the place and even a temporary residence shall suffice, such temporary residence should not be illegal or forceful. The court, on an overall reading of the petition shall have to determine whether the child can be said to be ordinarily residing within its jurisdiction.
49. In the present case, on a bare reading of the petition filed by the wife under the G&W Act, and the surrounding circumstances that are admitted by her, the minor child could not be said to be ordinarily residing within the jurisdiction of the learned Family Court.
In the High Court of Delhi at New Delhi
(Before Navin Chawla and Renu Bhatnagar, JJ.)
Mat. APP.(F.C.) 135/2024
Sunaina Rao Kommineni Vs Abhiram Balusu
Citation: 2025 SCC OnLine Del 4176, 2025:DHC:4483-DB |
