In an appeal filed before the Delhi High Court under Section 19 of the Family Courts Act, 1984, to assail an order dated 05-06-2026 by the Family Court-01, Saket Courts, Delhi, whereby the father’s application under Section 26 of the Hindu Marriage Act, 1955 (HMA) was allowed, permitting the minor child to be brought to India from the USA, a Division Bench of Justice Tejas Karia and Justice Madhu Jain allowed the appeal and modified the impugned order.
Both parties filed affidavits regarding the visa status of the minor child. The minor child resided in the USA on a dependent visa linked to the mother, whose immigration process was in a transitional phase following her selection under the H-1B FY 2027 CAP Programme.
The mother submitted that the Family Court failed to interact with the minor child to ascertain his wishes and preferences, even though it was specifically notified to the court that the child had repeatedly expressed his unwillingness to travel to India during the summer vacation. It was also contended that the father was a Vice President at a multinational corporation and that he was financially capable of travelling as well as spending meaningful time with the child in the USA during the vacations.
While the mother contended that international travel would adversely affect the pending change-of-status application, the father argued that the child held a valid multiple-entry B-1/B-2 tourist visa until 31.07.2029 and could easily re-enter the United States even if the F-2 visa loses its validity.
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The Court opined that the Family Court overlooked the serious immigration-related concerns arising from the transition in the mother’s visa status and the impact on the minor child’s residence as well as immigration status in the USA. It was noted that the child’s immigration status was linked to that of the mother, whose visa status was in transition consequent upon her completing the academic programme and commencement of employment in the USA.
It was said that if the minor child travels to India pursuant to the impugned order and thereafter, is not permitted to return to the USA due to any immigration related complication, it would not be conducive to the child’s welfare and best interests. Hence, the Court found that the Family Court’s observation that the immigration-related issues would result in denial of child’s access to the father, was not entirely accurate. It was noted that the father had already travelled to the USA on 12.06.2026 and could exercise his visitation rights as well as custody during the summer vacation there without bringing the child to India. The Court suggested that the father could prioritize the child by working remotely from the USA.
Thus, the Court allowed the appeal and modified the impugned order to the extent that the minor child was directed to remain with the father in the USA during the vacation period without being brought to India. Lastly, the father was directed to ensure that the child is safely returned to the mother three days prior to the reopening of the school on 15.07.2026.
