Parent cannot defeat custody case jurisdiction by taking child elsewhere, Karnataka High Court rules

The appellant-mother and respondent-father were married on 6 July 2018 and had two sons.

The younger child, born on 11 October 2021, was residing with the mother in Bengaluru.

According to the mother, on 3 September 2023 the father took the child from Bengaluru on the assurance that he would return him within fifteen days, but thereafter retained custody at Ilkal Taluk, Bagalkot District, despite her demands for return of the child.

The mother approached various authorities, issued a legal notice, and instituted matrimonial and maintenance proceedings in Bengaluru.

She also filed a habeas corpus petition before the High Court, but was directed to pursue an appropriate remedy.

The mother thereafter filed G. & W.C. No. 18/2025 before the Family Court, Bengaluru, under Section 7 of the Guardians and Wards Act, 1890, seeking custody of the younger child, together with an application for interim custody under Section 12.

The father disputed the territorial jurisdiction of the Bengaluru Family Court, contending that the child was residing with him at Ilkal and that, under Section 9 of the Guardians and Wards Act, only the court having jurisdiction over the place of the child’s ordinary residence could entertain the petition.

The Family Court accepted this objection and returned the petition for presentation before the appropriate court by order dated 6 January 2026.

The mother challenged that order in the present appeal.

Whether the Family Court, Bengaluru, was justified in returning the mother’s custody petition solely on the ground that the minor was presently residing with the father in Bagalkot District?

Whether the child’s ordinary residence remained Bengaluru, where he had been residing with the mother before being taken away by the father, for purposes of Section 9 of the Guardians and Wards Act, 1890?

Whether the pendency of matrimonial proceedings in Bengaluru and the child’s tender age were relevant circumstances requiring the Family Court to examine the custody petition on merits rather than return it at the threshold?

The Court applied Section 9 of the Guardians and Wards Act, 1890, under which a guardianship petition may be presented before the court having jurisdiction over the place where the minor “ordinarily resides”; ordinary residence is not necessarily the place where the child is physically found or temporarily kept.

The Court held that a parent cannot defeat territorial jurisdiction by unilaterally removing the child from the place of settled residence and creating a different forum.

The Court also considered Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which ordinarily places a minor below five years in the custody of the mother.

Relying on Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318, the Court reiterated that, in respect of a child below five years, custody ordinarily lies with the mother unless the father establishes cogent reasons demonstrating her unsuitability or that the child’s welfare would be prejudiced.

The paramount consideration in all custody proceedings remains the welfare and best interests of the child.

The Court further treated the pendency of connected matrimonial proceedings before the Bengaluru Family Court as a relevant circumstance against returning the petition where doing so could cause multiplicity of proceedings or conflicting orders.

The High Court held that the child’s present physical location with the father in Ilkal could not, by itself, determine his ordinary residence under Section 9.

The child had been residing with the mother in Bengaluru before the father allegedly removed him, and the Court was required to examine the nature and duration of that residence and the circumstances of the removal.

Accepting the father’s objection solely because he had taken the child to another district would permit a parent to choose the forum by unilateral action and would operate unfairly against the other parent.

The Family Court also failed to consider that matrimonial proceedings were already pending in Bengaluru and that the custody dispute was connected with those proceedings.

Further, the child was below five years of age, and there was no finding that the mother was unfit or unsuitable; consequently, the statutory preference for maternal custody under Section 6(a) was a relevant consideration while deciding the interim custody application and the custody dispute on merits.

The Family Court therefore adopted an unduly narrow approach by returning the petition at the threshold instead of examining jurisdiction and custody in light of the child’s welfare.

The High Court set aside the Family Court’s order dated 6 January 2026 returning the petition and restored G. & W.C. No. 18/2025 to the file of the Family Court, Bengaluru, for disposal on merits.

The Family Court was directed to consider the mother’s application for interim custody, bearing in mind the child’s tender age, the principles governing custody of a child below five years, the circumstances of the child’s removal, the child’s ordinary residence, and the paramount consideration of welfare.

The parties were directed to appear before the Family Court on 2 September 2026 without further notice.