Posts
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.
