Jeremy D Morley
Jurisdiction in India concerning child custody matters is primarily based on the concept of “ordinary residence.” Section 9 (1) of the Guardian and Wards Act 1890 provides that, “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.” Ordinary residence is not necessarily the same as habitual residence, but it is based on the original meaning of the term in English law. Nonetheless, the courts in India have developed their own jurisprudence concerning its interpretation.
The leading case is the Supreme Court of India's ruling in Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479, which outlines with the simple proposition that “ordinary residence” means “where the minor ordinarily resides,” but then provides helpful amplification of that concept. The key provision in the ruling, explaining the fundamental distinction between sufficient and insufficient residence, comes in the Court's analysis of a prior case, Jagir Kaur and Anr. v. Jaswant Singh, AIR 1963 SC 1521. The Court in Majoo explained as follows:
The Court [in Kaur] 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:
‘.......Having regard to the object sought to be achieved, the meaning implicit in the words used, and the construction placed by decided cases there on, we would define the word "resides" thus: a person resides in a place if he through choice 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.....' "
Thus, the fundamental distinction is between a mere “flying visit to, or casual stay at a particular place,” which is insufficient to create ordinary residence and residence “through choice” to make a place “his abode permanently or even temporarily,” which may be sufficient. The Court also cited the case of Kuldip Nayar v. Union of India, AIR 2006 SC 3127, in support of the proposition that, “residence is a concept that may also be transitory.”
The Indian courts have further held that an ordinary residence cannot be created by child snatching. A very recent example is the case of Akhilesh Anjana vs Kavita Anjana (14 March, 2022, Madhya Pradesh High Court), holding that a child who was living with his father after the father had unilaterally removed him from the matrimonial home continued to be ordinarily resident in the district in which he had been living before his father had wrongfully removed him.
In addition to jurisdiction based on ordinary residence, Indian courts also may assert child custody jurisdiction on the basis of parens patriae, based on the traditional duty of the sovereign to protect all who are present in the country, and on the basis of habeas corpus. Such cases are exceptional and are primarily founded on the need to provide urgent protection for a child who is physically present in the district in which the court is located, even if the child is not ordinarily resident there. These issues arise frequently in the case of international child abduction to India. In some cases, courts in India have held that foreign children should be returned to their home country based on the limited and exceptional jurisdiction founded on parens patriae and habeas corpus. Merely by way of example, the Supreme Court of India has most recently ordered the return of an American child to the United States because of the exceptional circumstances of his abduction. Rohith Thammana Gowda vs The State Of Karnataka, 29 July, 2022. However, as I have often reported, it is critical to note that such returns are rare and very much the exception rather than the rule.