Mother took kids to India during US custody case. Supreme Court says: not so fast.

She flew to India for a funeral. Twenty days later, she filed for custody in Hyderabad—while her husband was still fighting for the kids in a US court. The grandmother had died, but the legal battle that followed would test whether a parent could weaponise geography to win a custody war.

The Supreme Court delivered its answer: not so fast. Children born and living abroad cannot become "ordinarily resident" in India just because one parent brought them here mid-litigation. Their habitual residence—where their life actually was—matters more than where a parent dragged them.

When the funeral became a legal trap

The couple were both highly educated professionals who had settled in the United States since 2004-2005. They married in Hyderabad in 2008. Two children followed—born in the US in 2012 and 2014.

The marriage unravelled. In December 2016, the wife filed for divorce and child custody in the Court of Common Pleas, Lehigh County, Pennsylvania—a US court.

The US court ordered a conciliation conference. Both parents were told to maintain the status quo on where the children lived. The file in that court sat with the quiet weight of a proceeding that expected both parties to stay put.

Then, in March 2017, the wife told her husband she needed to travel to India for her grandmother's funeral. She took the children with her. The funeral itself—the rituals, the gathered family—became the cover for a decision already made.

Within twenty days of landing in Hyderabad, she walked into the Family Court and filed for custody under the Guardians and Wards Act, 1890 (a law that governs who gets legal custody of a child). She obtained an ex parte interim injunction (a temporary court order issued without hearing the other side) that restrained the father from taking the children.

Then she informed her husband she was not coming back.

The US court fights back

The husband did not sit still. He went back to the US court, which in May 2017 passed an emergency custody order granting him temporary physical custody and directing that the children be returned to the US by June 2, 2017. The US court had spoken—an order that would be ignored across an ocean.

The wife ignored it.

The husband then filed a habeas corpus petition (a court order that asks: where is this person, and is their detention legal?) in the High Court of Hyderabad, challenging the Family Court's jurisdiction. He argued that the Family Court had no business hearing a custody case about children who had spent their entire lives in the United States. The wife had unilaterally removed them from the jurisdiction of the US court that was already handling the case.

The Family Court, meanwhile, rejected the husband's application under Order 7 Rule 11 of the Civil Procedure Code (a provision that allows a court to throw out a case that has no legal basis). The Family Court insisted it had jurisdiction because the children were now physically present in Hyderabad. The judge's bench in that crowded Hyderabad courtroom held that physical presence was enough.

Why the High Court said no

The High Court disagreed. In February 2018, it held that the Family Court lacked territorial jurisdiction under Section 9 of the Guardians and Wards Act, 1890. That section says a court can hear a custody case only if the child "ordinarily resides" within its jurisdiction.

The High Court ruled: children born and habitually resident in the United States could not be considered "ordinarily resident" in Hyderabad just because their mother had brought them there during a pending custody battle abroad.

The High Court directed the children to be returned to the US within four weeks. The order was crisp, final—the sound of a gavel that would send two children back to a country they barely remembered leaving.

The wife appealed to the Supreme Court.

The question the Supreme Court had to answer

The core issue before the Supreme Court was deceptively simple: under Section 9 of the Guardians and Wards Act, what does "ordinarily resident" mean when one parent has unilaterally removed children from their country of habitual residence?

The wife argued: the children were now physically in Hyderabad, attending school there. The Family Court was the right forum to decide what was in their best interest. She pointed to the fact that the Family Court had already passed orders protecting her custody.

The husband countered: the children had never lived in India. They were born in the US, schooled in the US, and had all their medical and social connections there. The wife had removed them during a pending case, in violation of the US court's status quo order. Allowing the Family Court to exercise jurisdiction, he argued, would reward forum-shopping (choosing a court based on which one is likely to give a favourable outcome) and undermine the principle of comity of courts (the respect one court gives to another court's proceedings).

The Supreme Court attempted extensive mediation. The sessions stretched over days, with both sides nearly reaching a settlement. But in the end, the mediation failed—the gap between the parents was too wide, the trust too broken.

What the Supreme Court held

The Supreme Court, in a judgment delivered by Justice Rastogi, agreed with the High Court. The bench held that children who are born and habitually resident in a foreign country are not "ordinarily resident" within the jurisdiction of an Indian Family Court under Section 9 of the Guardians and Wards Act merely because one parent brought them to India during the pendency of custody proceedings abroad.

Justice Rastogi wrote that the best interest of the child is paramount—but that this interest must be assessed considering the child's habitual residence, established environment, existing court orders, and the conduct of both parents, including any unilateral removal. The judgment stated the principle clearly: "Where a parent unilaterally removes children from the jurisdiction of the court of habitual residence in contravention of subsisting orders, such conduct weighs against that parent's custody claim and supports the return of the children."

The court cited its own precedents, including Nithya Anand Raghavan v. State (NCT of Delhi) and Surinder Kaur Sandhu v. Harbax Singh Sandhu, both of which had held that the wrongful removal of a child from the country of habitual residence should not give the removing parent a jurisdictional advantage. The court also referred to Surya Vadanan v. State of Tamil Nadu, Elizabeth Dinshaw v. Arvand M. Dinshaw, V. Ravi Chandran (Dr.) v. Union of India, and Jasmeet Kaur v. Navtej Singh—a line of authority that consistently warned against rewarding a parent who acted unilaterally.

The court also left open the possibility of other proceedings—under Section 498A of the Indian Penal Code (a provision dealing with cruelty by a husband or his relatives) or under the Hindu Marriage Act—but on the core question of jurisdiction, the answer was clear.

Why this matters for every parent with kids abroad

This judgment closes a loophole that could have been exploited by a parent who wanted to shift a custody battle to India mid-litigation. The court made clear: physical presence alone does not create "ordinary residence." The child's life before the removal—where they were born, schooled, and rooted—determines which court should hear the case.

THE PLAY: If you are a parent in a cross-border custody dispute, do not assume that bringing your child to India during a pending foreign case will give Indian courts jurisdiction. The child's habitual residence before the removal is what matters—and unilateral removal will hurt your custody claim.

The court ended where it began: with two children born in Pennsylvania, and a mother who flew home for a funeral but stayed to fight a war. The children went back.