Minor’s "Ordinary Residence" Doesn't Change Just Because A Parent Relocates Child During Subsistence Of Child Custody Dispute: Karnataka High Court

It was held that an application seeking custody of a minor may be instituted before the Court having jurisdiction over the place where the minor ordinarily resided immediately prior to his or her removal.

Update: 2026-08-29 14:10 GMT

The Karnataka High Court has held that a minor cannot be said to have changed his or her ordinary residence merely because one of the parents, during the subsistence of the matrimonial dispute, takes the child to another place and keeps the child there.

The Court also held that the jurisdiction cannot be defeated merely because, during or after the dispute, one of the parents has removed the minor to another place. The relevant consideration is the place where the minor would have continued to reside but for such removal.

The Division Bench of Justice DK Singh and Justice H Shanthi Bhushan held, "A minor cannot be said to have changed his or her ordinary residence merely because one of the parents, during the subsistence of the dispute, takes the child to another place and keeps the child there. If such removal were permitted to determine jurisdiction, the parent removing the child would effectively be permitted to choose the forum for adjudication of the custody dispute. Such a consequence cannot be accepted."

Advocate Naresh Kumar Jain appeared for the Appellant, while Advocate Shivananda Reddy RV appeared for the Respondent

Brief Facts of the Case

The Appellant-mother had filed a plea under Section 7 of the Guardians and Wards Act, 1980, read with the relevant provisions of the Family Courts Act, 1984 and Section 151 of the Code of Civil Procedure, seeking custody of her minor son.

The Family Court returned her petition with a direction to present the same before the appropriate Court having jurisdiction over the place where the minor child is presently residing with the father.

The Family Court observed that the Respondent-husband took the child away and had taken him to Ilkal Taluk, Bagalkot District, where the respondent was residing. The Family Court also observed that the custody of the child with the respondent could not, at that stage, be held to be unlawful.

Contentions of the Parties

It was contended by the Appellant-Mother that the impugned order has been passed in a mechanical manner without properly appreciating the circumstances in which the minor child came to be in the custody of the respondent. According to the Appellant, the child was ordinarily residing with her at Bangalore and was taken away from her custody by the respondent. Therefore, the subsequent residence of the child with the respondent at Ilkal Taluk, Bagalkot District cannot, by itself, change the ordinary residence of the minor so as to defeat the jurisdiction of the Family Court at Bangalore.

It was further contended that the Appellant had never voluntarily parted with the custody of the child. The respondent had taken the child from Bangalore on the representation that he would return the child within fifteen days. It was added that the paramount consideration in a proceeding relating to custody is the welfare and best interest of the minor.

The Respondent-husband contended that the minor child is presently residing with him at Ilkal Taluk, Bagalkot District and that, in view of Section 9 of the Guardians and Wards Act, the Court having jurisdiction over the place where the minor ordinarily resides alone would have jurisdiction to entertain the petition.

It was contended that the custody of the child with the respondent cannot be termed unlawful merely on the basis of the allegation made by the Appellant-Mother and that the Family Court was therefore justified in returning the petition for presentation before the appropriate Court.

Observations/Findings of the Court

The Court noted that Section 9 of the Guardians and Wards Act, 1890, confers jurisdiction upon the Court where the minor ordinarily resides.

It was observed that the expression used in the provision is “ordinarily resides” and not the place where the minor happens to be found or is kept on the date on which the petition is presented. Therefore, the mere fact that the father has taken the child to another place cannot, by itself, be determinative of the question of ordinary residence.

"The Court is required to consider the circumstances in which the child was residing at a particular place, the duration of such residence and the circumstances in which the child came to be removed from that place. In the present case, the child was residing with the mother at Bangalore and according to the mother, was taken away by the father from Bangalore to Ilkal Taluk, Bagalkot District. Such subsequent removal cannot, by itself, result in the ordinary residence of the child being changed so as to defeat the jurisdiction of the Court which otherwise had jurisdiction to consider the question of custody", the Court held.

The Court observed that if the contention of the father was accepted merely on the basis of the present physical location of the child, it would enable a parent to unilaterally remove a minor from the place where the child was ordinarily residing and thereafter contend that the Court at that place has no jurisdiction. Such a course cannot be permitted to operate to the prejudice of the other parent, particularly when the custody of a minor child is involved, it added.

"The Court was required to examine where the child ordinarily resided, the circumstances in which the child came to be at the present place and more importantly, whether the father could take advantage of his own act of removing the child from Bangalore...The welfare of the child cannot be made to depend upon the unilateral act of either parent. The Court must look to the circumstances as they existed before the dispute arose and not permit a party to create a different forum merely by taking the child from one place to another", the Court held.

Accordingly, the Court ruled that in the present case the fact that the minor is presently residing with the father outside Bangalore in Ilkal Taluk, Bagalkot District could not be treated as conclusive of the question of territorial jurisdiction. The Family Court was required to examine whether Bangalore continued to constitute the ordinary residence of the minor, having regard to the child's residence with the mother at Bangalore and the circumstances in which the father removed the child from Bangalore.

The Court allowed the appeal and set aside the impugned order. It also restored the file of the Family Court at Bangalore for consideration.