While noting that the immigration-related issues give rise to a serious concern regarding the child’s ability to travel to India and thereafter return to the USA, the Delhi High Court has modified a Family Court order by directing the minor child to remain with the father in the USA during the vacation period without being brought to India.

The appeal before the High Court was preferred by the appellant mother under Section 19 of the Family Courts Act, 1984, assailing the order of the Family Court whereby the application filed by the respondent father under Section 26 of the Hindu Marriage Act, 1955, was allowed, permitting the minor child to be brought to India from the USA.

The Bench of Justice Tejas Karia and Justice Madhu Jain held, “At present, the custody of the minor child remains with the Appellant, whereas the Respondent has been granted visitation rights during the summer and winter vacations by the learned Family Court. In these circumstances, the immigration-related issues give rise to a serious concern regarding the child’s ability to travel to India and thereafter return to the USA, particularly when the child’s visa status is linked to that of the Appellant, whose own status is presently in transition on account of her employment. Accordingly, the observation of the learned Family Court that the immigration-related issues would result in denial of access to the Respondent does not appear to be entirely accurate.”

Senior Advocate Priya Hingorani represented the Appellant while Advocate Somnath Bharti represented the Respondent.

Factual Background

Both the Appellant and the Respondent were directed to file their respective affidavits placing on record the relevant facts concerning the visa status of the minor child. The said order further recorded that, although the Respondent father was travelling to the USA on June 12, 2026, he had to await further orders of the Court before bringing the minor child back to India. In compliance with the directions, the Appellant as well as the Respondent filed their respective affidavits setting out their positions with regard to the visa status of the minor child.

Reasoning

On a perusal of the facts of the case, the Bench noted that the impugned order did not adequately appreciate the immigration-related concerns raised by the Appellant. The Bench found that the impugned order proceeded on the basis that there was no legal prohibition, judicial restraint, statutory embargo, or binding direction of any competent immigration authority on record to indicate that the minor child was prohibited from travelling outside the USA. The Family Court had also observed that immigration rules and visa processes in foreign jurisdictions, including the USA, were subject to frequent changes and stricter scrutiny, and the pendency of such processes could not indefinitely suspend the father-child relationship.

Considering that the Appellant’s visa status was in transition consequent upon the completion of her academic program and the commencement of employment in the USA, the Bench held that the impugned order overlooked the serious concerns arising from the change in the Appellant’s immigration status and the consequential impact on the minor child’s residence and immigration status in the USA.

The Bench was of the view that if the minor child travelled to India pursuant to the impugned order and was thereafter not permitted to return to the USA on account of immigration-related complications, the same would not be conducive to the welfare and best interests of the minor child.

According to the Bench, no prejudice would be caused to the Respondent if he continued to be in the USA to spend the entire summer vacation with the minor child without bringing the minor child back to India. “Although it was submitted during the course of the hearing that the Respondent has to join his work on 22.06.2026 and needs to return to India for the same, it is always possible for the Respondent to give priority to the minor child by extending his stay in the USA by working remotely from there”, it added.

Thus, allowing the appeal, the Bench modified the Impugned Order to the extent that the minor child would remain with the Respondent father in the USA during the vacation period without being brought to India, and the Respondent would ensure that the child is returned to the Appellant in the USA three days before the reopening of the minor child’s school.

Cause Title: A v. B (Neutral Citation: 2026:DHC:5127-DB)

Appearance

Appellant: Senior Advocate Priya Hingorani, Advocate Aditi Ladda

Respondent: Advocates Somnath Bharti, Kashish Aggarwal

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Delhi High CourtJustice Tejas KariaJustice Madhu Jain

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.