Parent Cannot Defeat Custody Jurisdiction By Removing Child: Karnataka HC

Bengaluru: The Karnataka High Court has set aside an order of the Family Court, Bengaluru, returning a mother's custody petition for want of territorial jurisdiction, holding that the ordinary residence of a minor child cannot be treated as changed merely because one parent unilaterally removes the child to another place during the subsistence of a custody dispute.

The Division Bench of Justice D K Singh and Justice H. Shanthi Bhushan was hearing a miscellaneous first appeal filed under Section 47 of the Guardians and Wards Act, 1890, read with Section 19(1) of the Family Courts Act and Order XLIII Rule 1(A) read with Section 151 of the Code of Civil Procedure, against the judgment and decree dated 06.01.2026 passed by the III Additional Principal Judge, Family Court, Bengaluru, in G & WC No.18/2025, whereby the petition seeking custody of the minor child was returned with a direction to present it before the court having jurisdiction over the place where the child was presently residing with the father.

As per the facts, the petitioner-mother and the respondent-father were married, and two sons were born of the wedlock, the younger being about three and a half years old at the relevant time. While the mother resided at Bangalore with the children, the father resided at Ilkal Taluk, Bagalkot District. It was her case that the respondent, who used to visit Bangalore to meet the children, took the younger child with him on 03.09.2023 on the assurance of returning him within fifteen days, but thereafter refused to hand back custody despite her repeated requests and approaches to the Child Welfare Committee, the National Commission for Women and the police.

The petitioner accordingly instituted G & WC No.18 of 2025 before the Family Court, Bangalore, under Section 7 of the Guardians and Wards Act, 1980, seeking custody of the child, along with an application for interim custody. The respondent disputed the territorial jurisdiction of the Family Court, contending that since the child was presently residing with him at Ilkal Taluk, Bagalkot District, only the court having jurisdiction over that place could, under Section 9 of the Guardians and Wards Act, entertain the petition. The Family Court accepted this contention and returned the petition, holding that the custody of the child with the father could not, at that stage, be held unlawful and that the question of ordinary residence had to be examined by the court of the place where the child was found.

Assailing this order, the petitioner's counsel contended that the child was ordinarily residing with the mother at Bangalore and had been taken away by the respondent, and that his subsequent residence with the father at Bagalkot could not, by itself, alter the child's ordinary residence so as to defeat the jurisdiction of the Family Court at Bangalore. It was further argued that the matrimonial proceedings between the parties were already pending before the same Family Court, and that requiring the mother to institute fresh proceedings elsewhere would result in multiplicity of litigation and cause hardship, apart from ignoring the welfare of the child, who was of a tender age.

On behalf of the respondent, it was contended that once the child was found to be residing with the father at Bagalkot, Section 9 of the Guardians and Wards Act vested jurisdiction solely in the court of that place, and that custody with the father could not be termed unlawful merely on the petitioner's allegations.

Opening its judgment, the Court observed

the guardianship and custody of a child of 4 years 10 months old is the subject-matter of the anxious concern of this Court in this appeal, and that the deepest consideration for the welfare of the child was paramount in its mind while disposing of the appeal.

Examining Section 9 of the Guardians and Wards Act, 1890, the Court held that the expression 'ordinarily resides' cannot be equated with the place where the minor happens to be found or is temporarily kept on the date of presentation of the petition, but connotes a regular and settled home. It held that where a minor was ordinarily residing with one parent and was subsequently removed by the other parent to a different place, such removal could not, by itself, shift the ordinary residence of the child so as to defeat the jurisdiction of the court that would otherwise have had jurisdiction, since this would allow a parent to unilaterally choose the forum by removing the child. The Court also noted that the pendency of the matrimonial proceedings between the parties before the same Family Court was a relevant circumstance which ought to have been considered, as requiring separate proceedings elsewhere would result in multiplicity and possible conflicting orders.

On the question of custody itself, the Court referred to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which provides that the custody of a minor who has not completed five years of age shall ordinarily be with the mother, and to the Supreme Court's decision in Roxann Sharma v. Arun Sharma, holding that it is for the father to plead and establish the mother's unsuitability where the child is below five years of age. Noting that the child was about 4 years and 10 months old and that there was no finding that the mother was unfit, the Court held that the statutory preference for maternal custody assumed significance and that the Family Court was not justified in returning the petition at the threshold without examining these aspects.

The Court accordingly allowed the appeal, set aside the impugned order, and restored the petition to the file of the Family Court at Bangalore for consideration and disposal on merits, including the prayer for interim custody, bearing in mind the ordinary residence of the minor, the circumstances of removal, the pendency of the matrimonial proceedings, and the statutory preference under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, with the welfare of the child remaining the paramount consideration. The parties were directed to appear before the Family Court on 02.09.2026.

Appearances:

For the Appellant: Sri. Naresh Kumar Jain, Advocate.

For the Respondent: Sri. Shivananda Reddy R V, Advocate.

Case Title: Miscellaneous First Appeal No. 1492/2026(FC), decided by the High Court of Karnataka at Bengaluru on 20.08.2026.