Sunaina Rao Kommineni vs Abhiram Balusu on 28 May, 2025

May 29, 2025

Delhi High Court

Sunaina Rao Kommineni vs Abhiram Balusu on 28 May, 2025

1. MAT.APP.(F.C.) 135/2024 has been filed by Smt. Sunaina
Rao Kommineni (hereinafter referred to as the, „Wife‟), challenging
the Order dated 15.04.2024, passed by the learned Judge, Family
Court-01, South East District, Saket Courts, Delhi (hereinafter referred
to as, „Family Court‟), in G.P. No. 27/2023, titled Smt. Sunaina Rao
Kommineni v. Sh. Abhiram Balsus, (hereinafter referred to as, „GP‟),
whereby the GP filed by the wife under Sections 7, 8, 9 and 25 of the
Guardians and Wards Act, 1890 (hereinafter referred to as the „G&W
Act‟) has been rejected by the learned Family Court for want of
territorial jurisdiction.

2. W.P.(CRL) 912/2023 has been filed by Mr.Abhiram Balusu
(hereinafter referred to as the „husband‟), inter alia, praying for a Writ
of Habeas Corpus, directing the production of the male minor child of
the parties, and further seeking permission to take the minor child
back to Arizona, USA.

3. As the appeal and the Writ Petition are based on identical facts
and involve overlapping issues concerning the welfare of the minor
child, they are being decided together by way of this common
judgment.

Signature Not Verified
Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 2 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59

FACTS OF THE CASE:

4. The husband has been residing in the USA since January 2005.
Since November 2012, he has been employed with Infineon
Technologies in Arizona, USA. The parties were married in
accordance with Hindu rites and ceremonies at Vijayawada, Andhra
Pradesh on 15.08.2013. Immediately after the marriage, the wife
travelled to the USA with the husband, and since then and till
25.11.2022, was residing in the USA with the husband. From the
wedlock, a male child was born to the parties on 30.10.2017. Having
been born in the USA, he is an American citizen by birth and resided
with the parties in the USA till 25.11.2022, when he, along with his
parents, travelled to India for a holiday with the return tickets booked
for all three of them to return to the USA on 09.01.2023.

5. Admittedly, upon landing in Delhi on 25.11.2022, the wife,
with the assistance of the Airport Security, took the minor child away
from the husband.

6. She thereafter, on 01.12.2022, filed a Writ Petition, being W.P.
(Crl.) No. 2888/2022, titled Sunaina Rao Kommineni & Anr. v. State
Govt. of NCT of Delhi & Ors., seeking protective orders for herself
and for her minor child.

7. This Court, by its Order dated 05.12.2022 passed in the said
Writ Petition, directed that the numbers of the Beat Constable and the
SHO be provided to the wife in case of any immediate threat. The
Writ Petition was eventually disposed of as withdrawn by an Order
dated 22.02.2023.

Signature Not Verified
Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 3 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59

8. The wife, in the meantime, on 02.01.2023, filed an application
under Section 12 of the Protection of Women from Domestic Violence
Act, 2005 (hereinafter referred to as the „DV Act‟), being CT No.
11/2023, before the Court of the learned Metropolitan Magistrate,
Mahila Court, South East District, Saket Courts, Delhi.

9. She also claims to have got the minor child admitted to a Pre-
school at DPS International School, Delhi, in January 2023.

10. As far as the husband is concerned, on 23.01.2023, upon his
return to the USA, he filed an Emergency Motion for minor child
Custody (Legal Decision Making and Parenting Time) for the minor
son, in the Superior Court, Maricopa County, Arizona, USA. The
Arizona Court, while declining the motion to pass an ex-parte order,
vide Order dated 25.01.2023, issued notice on the same, directing the
parties to appear virtually before it for a Resolution Management
Conference on 27.02.2023. The husband then filed a motion before the
Arizona Court, requesting it to convert the hearing on 27.02.2023 to a
temporary order evidentiary hearing. On the said application, the
Arizona Court, by an Order dated 06.02.2023, directed the parties to
appear for an evidentiary hearing before it on 07.03.2023.

11. In the meantime, the wife filed a petition under Section
13(1)(ia) of the Hindu Marriage Act, 1955, seeking divorce from the
husband before the learned Family Court at Saket, being HMA No.
282/2023.

12. By an Order dated 10.03.2023, the Arizona Court, upon hearing
the parties, observed that, as the minor child‟s home State had been in

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By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
Arizona within 6 months before the filing of the Motion for
Temporary Order, and although the minor child was absent from the
State, as a parent or person acting as a parent continued to live in
Arizona, the said Court has jurisdiction and the Indian Court would
lack territorial jurisdiction over the matter. The Court further directed
that the minor child‟s best interest would lie with the primary
residential parent, that is, the husband, to have the sole legal decision-
making authority regarding the minor child. The Court also set down
the parenting plans, directing the wife to return the minor child to the
husband in Arizona no later than 17.03.2023. It was further directed
that if the wife returns to Arizona and resides in the Phoenix
Metropolitan Area, the parties shall share an equal parenting time
schedule on a week-on/week-off basis, in order to minimize the
parties‟ interaction. The exchange shall occur on Sundays at 05:00
P.M. in the parking lot of the police department that is the closest to
the husband‟s residence. When the minor child is with the other
parent, each parent shall have video calls with the minor child on
Tuesdays and Thursdays at 05:00 P.M. for up to 20 minutes.
Additionally, it was directed that if the wife does not return to Arizona
and reside in the Phoenix Metropolitan Area, then she shall exercise
parenting time on the second full weekend of each month, in Arizona,
from Friday at 05:00 P.M. till Monday at 05:00 P.M.. The wife would
also have video calls with the minor child on Tuesdays and Thursdays
at 05:00 P.M., (Arizona time), with each call lasting up to 20 minutes.
It was directed that the minor child will reside with the husband in

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Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 5 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
Arizona at all times not specifically designated for the wife‟s
parenting time. Other conditions of joint parenting were also
stipulated in the order. It was specifically directed that in case the wife
fails to return the minor child to the husband in Arizona as ordered,
then the husband shall retrieve the minor child in India from the wife
as early as 19.03.2023, paying all the travel expenses for himself and
the minor child subject to reallocation. The wife was directed to
cooperate in returning the minor child over to the husband at the
airport upon his arrival.

13. As the wife did not return to the USA along with the minor
child in compliance with the above order, the husband filed the
present writ petition on 21.03.2023 before this Court.

14. Instead of complying with the above order, the wife, on
18.03.2023, filed the above-mentioned GP under the G&W Act, inter
alia, seeking a declaration that she is the sole and legal guardian of the
minor child and seeking permanent and sole custody of the minor
child.

15. As far as the territorial jurisdiction is concerned, the wife
contended as under:-

“27) That the Petitioner has left the
matrimonial home and is currently residing
with her parents in Delhi and within the
territorial limits of this Hon’ble Court.

Therefore, this Hon’ble Court has territorial
jurisdiction to entertain the present case.”

16. The husband filed an application under Order VII Rule 11 of
the Code of Civil Procedure, 1908 (CPC) in the aforementioned GP,

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Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 6 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
and the same has been allowed by the learned Family Court by way of
its Impugned Order dated 15.04.2024. The learned Family Court
observed that as the minor child had barely stayed in Delhi for 113
days prior to the filing of the petition under the G&W Act, the minor
child cannot be said to be “ordinarily residing” in Delhi as on the date
of the institution of the said petition and, therefore, the learned Family
Court lacked the territorial jurisdiction to try and entertain the said
petition. The learned Family Court further held that merely because a
marital discord had arisen between the parties and the wife intends to
reside in Delhi along with the minor child, it could not be a ground for
her to claim permanent custody of the minor child within the legal
system of India. Accordingly, the GP filed by the wife was rejected
under Order VII Rule 11 of the CPC.

17. As noted hereinabove, the present appeal has been filed by the
wife challenging the above order.

SUBMISSIONS ON BEHALF OF LEARNED COUNSEL FOR
THE HUSBAND:

18. In the above factual background, Mr. Prabhjit Jauhar, the
learned counsel for the husband, contends that the parties were settled
residents of Arizona, USA, since August 2013. They have obtained
Green Cards, that is, permanent residency in the USA, clearly
indicating their intent to stay permanently in the USA. The minor
child was also born in the USA on 30.10.2017 and remained there
until the parties decided to visit India for a short vacation on
25.11.2022. The minor child was also, therefore, a permanent resident

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By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
of the USA.

19. He submits that the minor child was well-settled in the USA
and was, in fact, attending a school where he was performing well. In
support of this submission, he places reliance on a certificate dated
12.01.2023 issued by the Head of School, Ahwatukee Foothills
Montessori.

20. He places extensive reliance on the order passed by the Superior
Court of Arizona, which has been referred by us in detail hereinabove.
He submits that merely because the wife does not wish to reside with
the husband, she cannot retain the custody of the minor child in India.
He submits that a direction should, therefore, be passed for the return
of the minor child to the USA, which is the country of his birth and
permanent residence, so that he may reside with the husband, who is
the natural guardian of the minor child.

21. He submits that the best interest of the minor child would also
lie in returning to the USA, wherein he would be entitled to various
other facilities such as better education, social security, and overall
development.

22. In support of his prayer, he places reliance on the Judgments of
the Supreme Court in Surinder Kaur Sandhu v. Harbax Singh
Sandhu & Anr., (1984) 3 SCC 698; Rohith Tammana Gowda v.
State of Karnataka & Ors, (2022) 20 SCC 550; Lahari Sakhamuri v.
Sobhan Kodali, (2019) 7 SCC 311; Yashita Sahu v. State of
Rajasthan & Ors., (2020) 3 SCC 67; and of the Bombay High Court
in Abhay v. Neha Joshi & Anr., 2023 SCC OnLine Bom 1943.

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Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 8 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59

23. On the issue of the lack of jurisdiction of the learned Family
Court to entertain the GP filed by the wife under the G&W Act,
placing reliance on the judgment of the Supreme Court in Lahari
Sakhamuri (supra) and of this Court in Paul Mohinder Gahun v.
Selina Gahun, (2006) 90 DRJ 77; and Philip David Dexeter v. State
of NCT of Delhi & Anr., (2013) 135 DRJ 537 (DB) and in Akhilesh
Kumar Gupta v. Ms.Gupta Snizhana Gryorivna & Ors., 2024 SCC
OnLine Del 1877, he submits that the minor child cannot be said to be
an “ordinarily resident” in Delhi. He submits that merely because the
wife chose to keep him in Delhi for a few days without the consent of
the husband, especially when the parties had travelled to India only for
a short vacation, would not make the child an ordinary resident of
Delhi. He submits that there was no intention between the parties to
make the minor child reside in Delhi, for even a temporary period,
which, he submits, is evident from the fact that return tickets had been
booked for all three of them for their return to the USA. He submits
that, therefore, the learned Family Court rightly passed the Impugned
Order rejecting the petition filed by the wife under the G&W Act.

24. He further submits that the husband is willing not only to bear
the travel expenses of the minor child but also those of the wife to
Arizona, USA. The husband also undertakes to let the wife reside in
the house where they were previously living, while he himself shall
move out of that house, and further agrees to pay for the regular
maintenance of the wife during her stay in the USA.

Signature Not Verified
Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 9 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59

SUBMISSIONS ON BEHALF OF THE LEARNED COUNSEL
FOR THE WIFE:

25. On the other hand, Mr.Jai Sahai Endlaw, the learned counsel for
the wife, submits that, as far as the Writ Petition is concerned, it
would require a detailed inquiry for the determination of the welfare
of the minor child. In such circumstances, this Court should refuse to
entertain the present Writ Petition and leave the parties to determine
their rights and the welfare of the minor child before the learned
Family Court. In support, he places reliance on the judgment of the
Supreme Court in Nirmala v. Kulwant Singh and Ors., (2024) 10
SCC 595.

26. He further submits that merely because the Superior Court at
Arizona has passed an order regarding the custody of the minor child,
this Court is not bound to enforce the same by way of a Writ Petition.
In support, he places reliance on Nithya Anand Raghavan v. State
(NCT of Delhi) & Anr., (2017) 8 SCC 454.

27. As far as the Impugned Order passed by the learned Family
Court is concerned, placing reliance on the judgment of the Supreme
Court in Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479, he
submits that the learned Family Court has erred in observing that the
minor child must permanently reside within its jurisdiction for the
purpose of Section 9 of the G&W Act to be invoked. He submits that
the term „ordinary residence‟ is a place where a person may reside
permanently or temporarily. He submits that in the present case, the
minor child was residing with the wife in Delhi; the minor child had

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By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
been admitted to a school in Delhi; and now, was well-settled in Delhi
at the time of filing the petition under the G&W Act. He submits that,
therefore, the learned Family Court has erred in rejecting the petition
by invoking Order VII Rule 11 of the CPC.

28. He submits that, even otherwise, the determination of the
question of „ordinary residence‟ of the child for the purpose of
Section 9 of the G&W Act, will be a mixed question of law and facts,
which cannot be determined in a summary manner by invoking Order
VII Rule 11 of the CPC. In support, he places reliance on the
judgment of the Supreme Court in Eldeco Housing and Industries
Limited v. Ashok Vidyarthi & Ors., 2023 SCC OnLine SC 1612.

29. He submits that the welfare of the minor child would lie in the
child remaining in India and in the custody of the wife, who is able to
provide a safe and loving environment for the minor child. He submits
that the husband was, in fact, indulging in domestic violence and,
therefore, it is not in the welfare of the minor child to return back to
that environment. He submits that, as against the same, the minor
child was earlier enrolled in a pre-school in Delhi, and is currently
studying at a reputed school, that is, DPS International School, R.K.
Puram, Delhi, which follows the Cambridge Education System, and is
doing well both academically as well as socially. He submits that,
therefore, the welfare of the minor child would be best served by
allowing the minor child to remain in Delhi in the custody of the wife.

30. He submits that merely because a Foreign Court has taken a
particular view on an aspect concerning the welfare of the minor child,

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By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
it is not enough for the Courts in this country to shut out an
independent consideration of the same. In support, he places reliance
on Nithya Anand Raghavan (supra).

31. He submits that even in the petition filed by the wife under the
DV Act, the husband sought to challenge the jurisdiction of the Court,
which was rejected not only by the learned Metropolitan Magistrate,
Mahila Court, South East District, Saket Courts, Delhi, by dismissing
such application vide Order dated 24.06.2023, holding that the wife
was residing in Delhi and that the Court had jurisdiction, but also by
the Appellate Court vide its Order dated 31.10.2023. The said orders,
in his submission, show that the minor child is also a resident of
Delhi.

ANALYSIS AND FINDINGS:

32. We have considered the submissions made by the learned
counsels for the parties.

33. These cases present a social problem where the parties move to
a foreign country for their job and for better living and with an intent
to reside there permanently, however, due to differences between
them, one of the spouses comes back to India with the minor child,
leaving this Court to determine not only the issue of jurisdiction of the
Court where they were earlier residing vis-à-vis Court in India, but
also of the welfare of the minor child as the two parents now wish to
reside in different countries. It need not be re-emphasized that in such
consideration, it is the welfare of the minor child which is paramount,
and that the welfare of the parents cannot be confused as the welfare

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By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
of the minor child. None of the warring parents can be allowed to
dictate what the welfare of the minor child would be, and it would be
for the Court to independently assess this issue taking into account all
surrounding circumstances presented before it.

34. The Supreme Court, when faced with similar issues, in Lahari
Sakhamuri (supra), placing reliance on its earlier Judgments in
Surinder Kaur Sandhu (supra); Mrs. Elizabeth Dinshaw v. Arvand
M. Dinshaw & Anr., (1987) 1 SCC 42; Surya Vadanan v. State Of
Tamil Nadu & Ors, (2015) 5 SCC 450; and in Nithya Anand
Raghavan (supra), observed that the crucial factors which have to be
kept in mind by the Court for determining the welfare of the child are,
inter alia, maturity and judgment, mental stability, ability to provide
access to schools, moral character, ability to provide continuing
involvement in the community, financial sufficiency, and the
relationship of the warring parents with the child. In cases, such as the
present, the doctrine of comity of Courts, intimate connection, orders
passed by Foreign Courts having jurisdiction in the matter regarding
custody of the minor child, and the citizenship of the parents and the
child, etc., can override the consideration of the best interest and the
welfare of the child. However, the Court must ensure that any
direction to return the child to a foreign jurisdiction, does not result in
any physical, mental, psychological, or other harm to the child. A
holistic consideration of the entire case must be undertaken.

35. In Yashita Sahu (supra), the Court held that a Writ of Habeas
Corpus is maintainable even if the child is in the custody of another

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By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
parent. It held that when a child is removed by one parent from one
country to another, especially in violation of the orders passed by a
Court, the country to which the child is removed, must consider the
question of custody and decide whether the Court should conduct an
elaborate inquiry on the question of the child‟s custody or deal with
the matter summarily, ordering the parent to return the custody of the
child to the jurisdiction from which the child was removed and all
aspects relating to the child‟s welfare be investigated in a Court in
his/her own country. The Court reiterated that in such matters of
custody of a child, the primary and paramount consideration is the
welfare of the child. While deciding the welfare of the child, it is not
the view of one spouse alone which has to be taken into consideration;
the Court must decide the welfare of the child keeping in view a host
of circumstances, like the age of the child, the nationality of the child,
the facilities of education, social security, and other welfare indicators.

36. In Rohith Tammana Gowda (supra), the Court reiterated that in
a matter involving the question of custody of a child, it has to be borne
in mind that the question „What is the wish/desire of the child‟ is
different and distinct from the question „What would be in the best
interest of the child‟. Certainly, the wish/desire of the child can be
ascertained through interaction, but „What would be in the best
interest of the child‟ is a matter to be decided by the Court taking into
account all the relevant circumstances.

37. In Arathy Ramachandran v. Bijay Raj Menon, 2025 INSC
587, the Court, while reiterating that the paramount consideration

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By:RENUKA NEGI
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should be the welfare of the child, held that utmost sincerity, love and
affection showered by either party, by itself, cannot be a ground for
deciding the custody of a child.

38. In Nirmala (supra), the Supreme Court cautioned that in a child
custody matter, the power of the High Court in granting the Writ of
Habeas Corpus is not restricted only in cases where the detention of a
minor is by a person who is not entitled to his legal custody; the Writ
is also maintainable where it is proved that the detention of the minor
child by a parent or others was illegal and without any authority of
law. It was held that no hard and fast guidelines can be laid down
insofar as the maintainability of a Writ Petitioner for Habeas Corpus
in matters of custody of a minor child is concerned; it will depend
upon the facts and circumstances of each case.

39. Having discussed the principles that are applicable to the
present appeal and the Writ Petition, a few facts again need to be
highlighted:

a) The parties were residing permanently in the USA since
August 2013 till 25.11.2022, when they travelled to India
for a short vacation that was to last only till 09.01.2023;

b) The parties are Green Card holders, that is, they have
permanent residency in the USA, thereby clearly evidencing
their intent to permanently reside in the USA;

c) The minor child was born in the USA on 30.10.2017 and is,
therefore, a citizen of the USA by birth;

d) The minor child throughout has been residing in the USA

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18:51:59
till he travelled to India with his parents for a short vacation
on 25.11.2022;

e) The minor child was studying in the USA and there is no
allegation of any misconduct by the husband towards the
minor child. At best, the only allegation of the wife is of
misconduct towards herself, for which, even on a prima
facie view, we do not find sufficient evidence to be treated
as a ground not to invoke our summary jurisdiction;

f) The minor child has remained in India only because the wife
unilaterally removed the minor child away from the husband
at the airport, against the wishes of the husband, and
decided to remain in India, keeping the minor child with
herself;

g) The Superior Court in Arizona has, at least prima facie,
considered the welfare of the minor child and has passed
directions for the return of the minor child to the USA and
for the joint parenting of the minor child, which we find to
be just and proper in the facts of the present case, and see no
reason to disagree with the same. In our opinion also, the
directions passed are in the best interest and welfare of the
minor child, wherein the minor child will get the love and
affection of both the parents; and,

h) The husband has offered to bear the costs of return travel for
both, the wife and the minor child, to the USA and also for
their residence and for the wife‟s maintenance while she is

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in the USA. The husband has also assured us that he would,
in order to maintain the welfare of the minor child, stay
away from the wife while she is in the USA and at his own
expense. It is, therefore, for the wife to decide whether she
wishes to return to the USA with the minor child and adhere
to the joint parenting order passed by the Superior Court of
Arizona.

40. Being influenced by the above factors, and taking note of the
fact that the minor child was accustomed to the environment in the
USA, was attending a good school in the USA against which there is
no complaint from the wife, and being a citizen of the USA, would be
entitled to various rights and opportunities which may not be available
to him if he were to stay back in India only because of the wishes of
the wife, we find merit in the Writ Petition filed by the husband.

41. Coming to the question of the jurisdiction of the learned Family
Court to entertain the petition filed by the wife under the G&W Act,
we first reproduce Section 9 of the G&W Act as under: –

“Section 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.

(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

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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.”

42. 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.

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

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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.

46. In Ruchi Majoo (supra), on which much reliance has been
placed by the learned counsel for the wife, the Court emphasized that
a challenge to the jurisdiction of the Family Court will have to be
examined in the context of the averments made in the pleadings of the
parties and the requirement of Section 9 of the G&W Act. In that case,
the respondent therein admitted to a settlement agreement of allowing
the minor child to stay back in New Delhi and to study here, and
wanted to withdraw from the said settlement only because of his
subsequent conduct. In those facts, the Supreme Court held that
whether the minor is ordinarily residing at a given place, is primarily a
question of intention, which, in turn, is a question of fact, and at best,
a mixed question of law and fact. The Court, therefore, held that the
question of whether the above settlement had been obtained under
duress and coercion, was a fact to be determined at trial. The Court
observed as under: –

“46. In the light of what we have stated
above, the High Court was not, in our opinion,
right in holding that the respondent’s version
regarding the letter in question having been
obtained under threat and coercion was

Signature Not Verified
Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 19 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
acceptable. The High Court appeared to be of
the view that if the letter had not been written
under duress and coercion there was no
reason for the respondent to move a
guardianship petition before U.S. Court. That
reasoning has not appealed to us. The question
whether or not the letter was obtained under
duress and coercion could not be decided only
on the basis of the institution of proceedings
by the respondent in the U.S. Court. If the
letter was under duress and coercion, there
was no reason why the respondent should not
have repudiated the same no sooner he landed
in America and the alleged duress and
coercion had ceased. Far from doing so the
respondent continued to support that decision
even when he was far away from any duress
and coercion alleged by him till the time he
suddenly changed his mind and started
accusing the appellant of abduction. The High
Court failed to notice these aspects and fell in
error in accepting the version of the
respondent and dismissing the application
filed by the appellant. In the circumstances we
answer question no.1 in the negative.”

47. In the present case, however, there is no dispute on the facts at
all. It is not disputed that the parties had visited India only for a short
stay and had booked their return tickets for 09.01.2023 for all three of
them. If the wife always had an intention of staying back in India on
her return, at least, she did not manifest this to the husband before
their departure from the USA. The husband, in his turn, immediately
on knowing that the wife does not intend to return the minor child to
the USA, invoked the remedies before the Court in the USA, and has
been diligently following up the same, including the filing of the
present Writ Petition expeditiously after the passing of the order by

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Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 20 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
the Superior Court at Arizona, USA. Merely because the wife has
decided to stay back in India and has got the minor child admitted to a
school here, would not, therefore, make the minor child an ordinary
resident of Delhi (India). 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.

50. We have also reproduced herein above the averment made by
the wife in the petition for invoking the territorial jurisdiction of the
learned Family Court. Her own residence, as noted hereinabove, is not
the repository of the jurisdiction in the Family Court.

51. In view of the above, we do not find merit in the appeal filed by
the wife. The same is, accordingly, dismissed.

52. As far as the Writ Petition filed by the husband is concerned,

Signature Not Verified
Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 21 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
we pass the following directions:

i. The wife, if she so desires, shall return to Arizona, USA, along
with the minor child, on or before 01.07.2025;
ii. She shall inform her decision to return to USA to the husband,
on or before 15.06.2025;

iii. In case the wife decides to return back to Arizona, USA, the
husband shall make all necessary travel arrangements for the
wife and the minor child;

iv. Upon their return, the husband shall allow the wife and the
minor child to stay at their earlier shared residence, and shall
remove himself from the same until further orders are passed by
the competent Court at Arizona, USA in that regard.
v. The husband shall also pay to the wife the maintenance,
presently assessed at USD 2000 per month for herself and for
the minor child. This amount, for the first month, shall be paid
in advance by the husband at the time of departure of the wife
from India along with the minor child.

vi. Further directions regarding the custody and the guardianship of
the minor child and on the maintenance for the wife shall be
obtained by the parties from the competent Court at Arizona,
USA.

vii. In case the wife does not abide by the above directions and
decides not to return back to Arizona, USA, she shall hand over
the custody of the minor child to the husband on 02.07.2025
before the Registrar General of this Court at 11:00 A.M.

Signature Not Verified
Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 22 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59
viii. In case of failure of the wife to handover the custody of the
child to the husband, husband shall be entitled to take
assistance of the police to obtain the custody of the child from
the wife. The SHO of the concerned Police Station is directed
to render all assistance to the husband for the same.
ix. The husband, upon obtaining the custody of the minor child,
shall take back the minor child to Arizona, USA. In such an
eventuality as well, further directions regarding the custody and
the guardianship of the minor child shall be obtained by the
parties from the competent Court in Arizona, USA.
x. To ensure that the child returns to the USA, in case the wife is
in possession of the American passport of the child, she shall
handover the same to the husband.

xi. The wife shall take necessary action to get the child relieved
from the present school and the husband shall get him admitted
to the school in the USA, without causing much interruption to
his studies.

53. With the above directions, the Writ Petition and the appeal
along with the pending applications are disposed of.

54. The parties shall bear their own costs.

NAVIN CHAWLA, J

RENU BHATNAGAR, J
MAY 28, 2025/rv/DG Click here to check corrigendum, if any

Signature Not Verified
Digitally Signed MAT.APP.(F.C.) 135/2024 & W.P.(CRL) 912/2023 Page 23 of 23
By:RENUKA NEGI
Signing Date:28.05.2025
18:51:59

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Author: Navin Chawla

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