NRI Parents, Child’s Return to India
This Supreme Court–based article explains how Indian courts decide territorial jurisdiction in NRI child custody disputes, especially when one parent tries to retract consent by alleging coercion or duress. It is drafted for Legal Light Consulting in an educational, client-friendly format.
In the case under discussion, both parents were NRIs and the minor child was originally in the USA with them. The mother later returned to India with the child, and by joint parental decision the child began living in Delhi and attending school there for about three years.
During this period, the child became integrated into life in Delhi: school, daily routine, and social environment all centred in Delhi with the mother as the primary caregiver.
After some time, serious matrimonial and parenting disputes arose between the parents. The mother then filed an application for custody of the minor under the Guardians and Wards Act, 1890 before the District Court at Delhi, invoking Sections 7, 8, 10 and 11 of the Act. The father objected, challenging the very jurisdiction of the Delhi Court to hear the custody case.
Legal Issue: Ordinary Residence and Section 9 GWA
The core legal question was: which court had territorial jurisdiction under Section 9 of the Guardians and Wards Act, 1890, which requires that custody applications be filed where the minor “ordinarily resides”.
The father argued that the child’s stay and schooling in Delhi did not reflect “ordinary residence” but only a temporary arrangement based on his consent, which he claimed was obtained under coercion and duress.
If the child was legally considered an ordinary resident of Delhi, the Delhi District Court would have jurisdiction to decide custody. If not, the father could potentially insist on proceedings elsewhere or rely on foreign proceedings in the USA.
Thus, the concept of “ordinary residence” became central: it involves factual, stable residence where the child has actually been living, not merely the unilateral intentions of one parent expressed later.
Father’s Plea of Coercion and Duress
To escape Delhi jurisdiction, the father pleaded that his consent allowing the child to stay and study in Delhi with the mother had been obtained through coercion and duress.
He claimed that he never really intended the child to live in Delhi permanently, and therefore the child’s stay there could not confer ordinary residence for jurisdictional purposes.
However, when given an opportunity, the father clearly stated that he did not want to lead evidence to prove this coercion or duress. Further, emails exchanged between the parties showed that the decision to keep the child in Delhi and send him to school there had been jointly and voluntarily taken by both parents.
The email correspondence directly contradicted the allegation that his consent had been extracted under threat or pressure.
Supreme Court’s Findings on Jurisdiction
On these facts, the Supreme Court held that the District Court, Delhi had jurisdiction to entertain the custody application under Sections 7, 8, 10 and 11 of the Guardians and Wards Act. The Court underscored that:
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The child had been ordinarily residing in Delhi for the past three years, studying in a school there, and living with the mother in a settled manner.
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“Ordinary residence” is a matter of factual, stable residence and the child’s real-life centre of existence, not a technicality that can be changed overnight by one parent’s unilateral change of mind.
The Court specifically noted that a unilateral reversal of a joint parental decision cannot alter the fact situation regarding the place of ordinary residence. Once both parents had voluntarily decided that the child would stay and study in Delhi, one parent could not later deny that reality simply by alleging coercion without proof.
Unsubstantiated Pleadings: Coercion, Duress, and Abduction Claims
The Supreme Court rejected the father’s unsubstantiated plea of coercion and duress. Since he refused to prove the allegation and the emails showed a considered, joint decision, the Court held that this ground was untenable.
Bare pleadings without evidence cannot oust the jurisdiction of a court that otherwise clearly has territorial competence under Section 9.
The father also relied on the initiation of “abduction” proceedings against the mother in a US court, arguing that this showed that the child should be treated as belonging to US jurisdiction.
The Supreme Court clarified that such foreign proceedings do not by themselves determine where the child “ordinarily resides” for the purposes of an Indian guardianship petition. Indian courts must look to actual residence and welfare of the child, not merely to labels like “abduction” in a foreign case.
Guardians and Wards Act, Constitution, and Private International Law
The case also shows how Indian courts harmonise:
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Sections 7 to 11 of the Guardians and Wards Act, 1890 (on jurisdiction, filing and inquiry in guardianship/custody petitions).
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Constitutional remedies under Articles 226 and 136, which are sometimes invoked in parallel custody and matrimonial disputes.
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Principles of private international law/conflict of laws, particularly when there are foreign court proceedings and NRI parents.
The Supreme Court emphasised that:
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The welfare of the minor and the factual position of ordinary residence in India cannot be overridden merely by foreign proceedings.
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Indian courts remain competent to decide custody where the child is ordinarily residing in India, even if one parent is abroad and has approached a foreign court.
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Unsubstantiated or contradictory pleadings will not be allowed to defeat a legitimate jurisdiction in India that is grounded in the child’s real life situation.
Practical Takeaways for NRI Parents
For NRI parents involved in cross-border custody issues, this judgment conveys important lessons:
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When both parents agree that a child will live and study in a particular Indian city, that place will usually be treated as the child’s ordinary residence for court jurisdiction.
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A later attempt by one parent to retract consent by alleging coercion or pressure—without evidence—will not normally succeed in stripping an Indian court of its jurisdiction.
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Foreign “abduction” or similar proceedings do not automatically override Indian jurisdiction where the child is actually and ordinarily residing in India.
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Courts examine real residence, schooling, stability, and welfare of the child, not strategic allegations raised during litigation.
For mothers or fathers seeking or resisting custody in India in NRI contexts, early strategic advice on where to file, how to demonstrate ordinary residence, and how to deal with foreign orders or proceedings is crucial.
How Legal Light Consulting Can Help
Legal Light Consulting assists NRI and resident Indian parents in:
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Filing and defending child custody and guardianship petitions under the Guardians and Wards Act, 1890 in appropriate Indian courts.
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Establishing “ordinary residence” and jurisdiction with proper documentary evidence such as school records, residence proofs, and communication records.
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Handling parallel or conflicting foreign proceedings, including alleged abduction or relocation cases, within the framework of Indian private international law.
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Strategising filings under Articles 226 and 136 of the Constitution where necessary in complex NRI custody disputes.
This article is for educational purposes only and does not constitute legal advice or a substitute for personalised legal opinion. If you need help with NRI child custody, territorial jurisdiction, or related guardianship proceedings, please contact Legal Light Consulting directly for professional assistance.
FAQ: NRI Child Custody and Territorial Jurisdiction under Section 9, Guardians and Wards Act, 1890
Q1. What does “ordinary residence” of a minor mean for custody cases?
“Ordinary residence” means the place where the child normally lives as part of a stable, regular life pattern, not just a temporary stay or short visit. Courts look at where the child’s home, school, daily routine and family life are actually based, along with the intention to make that place the child’s usual abode
Q2. Which court has jurisdiction under Section 9 of the Guardians and Wards Act, 1890?
Under Section 9(1), the court where the minor “ordinarily resides” has jurisdiction to entertain a guardianship or custody petition. For NRI children, if the child has been living and studying in a particular Indian city for a substantial period with both parents’ consent, that city’s District Court usually has jurisdiction
Q3. In an NRI case, can a child’s stay in India make India the place of ordinary residence?
Yes, if both NRI parents have jointly decided that the child will stay in India, live with one parent and attend school there, and this continues for a significant time, India (and that specific city) can become the child’s ordinary residence.
The Supreme Court has held that where parents agreed by email that the mother and child would shift to Delhi and the child studied there for years, Delhi courts had jurisdiction
Q4. What if one parent later changes their mind and says, “I never intended the child to stay there”?
A unilateral change of mind by one parent does not change the fact of the child’s ordinary residence if the original decision was joint and has been acted upon. Courts focus on the real situation of the child’s life, not the later strategic reversal by one parent to defeat jurisdiction
Q5. Can a parent block jurisdiction by alleging that consent was obtained by coercion or duress?
Simply alleging coercion or duress is not enough; it must be properly pleaded and proved with evidence. In the Supreme Court case, the father alleged coercion but expressly refused to prove it, and emails showed clear voluntary consent, so the plea was rejected as unsubstantiated.
Q6. Do emails and written communications matter in proving ordinary residence?
Yes. Emails, messages and written communications between parents can be crucial evidence showing that both sides agreed to the child staying and studying at a particular place. In the NRI case, emails proved that both parents were “ad idem” (of the same mind) about shifting the child’s ordinary residence to Delhi
Q7. Does filing “abduction” proceedings in a foreign court (like a US court) automatically defeat Indian jurisdiction?
No. A foreign “abduction” or custody case does not automatically oust the jurisdiction of an Indian court where the child is actually and ordinarily residing. Indian courts examine the real residential facts and the child’s welfare, not just labels used in foreign proceedings
Q8. What is the legal test for determining ordinary residence under Section 9(1)?
The test has two main parts:
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Actual, regular, stable residence of the child at a particular place.
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Intention that this place be treated as the child’s usual or ordinary home, not a casual or temporary stop
Q9. Can a short stay or recent relocation create ordinary residence?
Generally, no. A brief or unilateral relocation (e.g., a parent shifting the child for a few weeks or months without genuine settled intention) is usually insufficient to create “ordinary residence”. Courts have held that temporary or forced moves cannot by themselves confer jurisdiction under Section 9.
Q10. How do Articles 226 and 136 of the Constitution interact with NRI child custody disputes?
Parents sometimes approach High Courts under Article 226 (writs, including habeas corpus) or the Supreme Court under Article 136 (special leave) alongside guardianship petitions.
Even then, the underlying principle of “ordinary residence” under Section 9 GWA and the child’s welfare remains central in deciding whether Indian courts will intervene
Q11. What should NRI parents consider before deciding where their child will live and study?
NRI parents should understand that a joint, long-term decision to place the child in a particular city and school can fix that place as the child’s ordinary residence for jurisdiction purposes.
Written communications, school admissions and duration of stay will all be examined later if a custody dispute arises
Q12. How can Legal Light Consulting – LLC Lawyer help in such NRI child custody matters?
Legal Light Consulting can:
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Assess whether a particular court in India has territorial jurisdiction based on ordinary residence
- Help collect and present evidence (emails, school records, residence proofs) to establish or contest ordinary residence
- Strategise and conduct proceedings under the Guardians and Wards Act, and handle related writs or appeals in High Courts and the Supreme Court
This FAQ is for educational and informational purposes only and does not constitute legal advice. For personalised guidance in NRI child custody, guardianship or jurisdiction disputes, please contact Legal Light Consulting – LLC Lawyer directly for professional assistance
