Allahabad High Court: In an application filed by the applicant-wife against the rejection of her appeal filed against the Trial Court’s orders granting the wife only visitation rights for her minor daughter (‘the child’), the Single Judge Bench of Vinod Diwakar, J., allowed the application, granting the custody of the child to the wife. The Court held that the husband first orchestrated a fabricated story to remove the child from wife’s care and then made the wife move out of the couple’s home solely to connivingly retain custody of the child.
Background
The parties got married in 2013, and from this union, a girl child was born, who was studying in Class VI. Thereafter, due to irreconcilable differences, such as demand for dowry, their matrimonial relationship deteriorated, culminating in the filing of an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (‘the DV Act’) by the wife in 2022. In the said proceedings, the wife, being the mother of the minor child, also filed an application seeking interim custody of the minor child.
Upon due consideration of the report submitted by the District Probation Officer and the statement of the minor child, the Trial Court rejected the prayer for interim custody. However, the Trial Court granted the mother the liberty to meet her minor child twice a week, specifically every Saturday and Sunday. Thereafter, via a subsequent order, the visitation conditions were modified to permit the mother to meet the child in a conducive and healthy environment.
Aggrieved, she appealed the aforesaid orders, but her appeals were rejected. The Appellate Court found the welfare of the minor child was better secured with the father since the child’s paternal grandparents lived with the father, and the child expressed a desire to live with her father. Therefore, it was held that custody with the father would be in the child’s best interests.
Aggrieved yet again, the wife filed the present petition.
Analysis
At the outset, the Court stated that the Guardians and Wards Act, 1890 (‘the GW Act’), was a colonial legislation that governs the appointment and regulation of minors in India. While the GW Act was a foundational step in formalising the legal structure concerning the guardianship of minors, it was drafted at a time when patriarchal norms heavily influenced social and legal thinking. Over time, judicial interpretations and social changes have significantly progressed, particularly in recognising the preferential custody rights of the mother, especially in the case of a female child.
The Court added that the principle that the father is the natural guardian of the minor child, a boy or an unmarried girl, and after him, the mother is the natural guardian, was previously derived from Section 6 of the Hindu Minority and Guardianship Act, 1956 (‘HMGA’). This concept had become obsolete in the progressive realities of the 21st Century in India. The Court stated that judicial interpretation had commendably filled the legislative void, especially in recognizing the preferential custodial rights of mothers of girl children. However, true progress demanded that the legislature codify these evolving norms to ensure a consistent and gender-neutral approach across the country.
The Court referred to Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413 wherein it was held that the child is not a “property” or “commodity”. Issues relating to custody of minors and tender-aged children should be handled with love, affection, and sentiments and applying a human touch to the problem. The Court also referred to Kumar V. Jahgirdar v. Chethana Ramatheertha (2004) 2 SCC 688, wherein it was held that the mother cannot always claim superior custody rights of her daughter. However, a female child at the advent of puberty requires a mother’s care and attention, which cannot be gained in the absence of female company in the father’s house. Thus, to safeguard the interest of the child, her exclusive custody may be given to the mother and visitation rights to the natural father.
The Court remarked that in child custody proceedings, especially involving a minor girl entering puberty, the role of the family court judge is not merely adjudicative but deeply protective and facilitative. The transition into adolescence is a sensitive period marked by profound emotional and physical changes, and the law recognises the need for careful, child-centric engagement by the judiciary. The judge is tasked with upholding not just statutory rights but also the child’s dignity, safety, emotional well-being, and evolving autonomy.
The Court stated that while deciding custody of a girl who has just entered puberty, Courts shall consider:
- who the primary caregiver has been,
- the girl’s schooling, community ties, and stability,
- whether there are any allegations of abuse, neglect, or inappropriate behaviour, and
-
demeanour and conduct of the parties to the litigation.
The Court further added that the judicial role in custody matters involving minor girls entering puberty was far more than a procedural function- it was a constitutional, moral, and empathetic responsibility. This called for a gender-sensitive, emotionally intelligent, and child-centered judicial approach, ensuring that the dignity, safety, and well-being of the child remained at the unwavering focus of custody decisions.
Regarding the mother’s custody of a female child, the Court remarked that in most cases, the mother was naturally better positioned to understand and support a daughter going through puberty because of the shared biological experience. The mother has personally experienced menstruation, and other female-specific changes, and can provide comfort in discussing such issues. Additionally, girls often feel more comfortable talking to their mothers about body changes, menstrual hygiene, etc. Thus, the mother often plays the more effective role in emotional attunement, being a natural caregiver, and is more likely to notice subtle psychological shifts.
Regarding the father’s role, the Court remarked that his role was equally essential in emotional support and reinforcing gender equality, though he might face limitations in understanding issues related to a woman’s biological experience and providing physical assistance with hygiene-related matters unless he is exceptionally sensitive and trained.
As far as the facts of the case were concerned, the Court noted that the husband opposed the interim custody of the child based on incorrect and misleading facts. He asked his wife to vacate their government accommodation under the pretext of relocating to a new residence. Furthermore, the Court noted that the husband, in a premeditated manner, removed the custody of the child from her mother by deceitfully taking the child to a nearby mall and subsequently keeping her at his ancestral home in Ghazipur for an extended period, even though the child ordinarily resided and pursued her studies in Lucknow.
Upon perusal of the evidence, the Court noted that evidently, the child was born in Delhi at the wife’s parental home, and all related medical expenses were borne by the wife’s father. As per the petition filed under Section 13(1) of the Hindu Marriage Act, 1955 (‘the HMA’), the wife allegedly deserted the husband on 06-8-2022 following a quarrel, taking with her the entire stridhan. The husband claimed that he made sincere efforts to reconcile the matrimonial dispute.
However, the Court noted that these averments contradicted the WhatsApp chat record and Google Maps record which indicated that the wife left the matrimonial home only on 26-10-2022. The Court stated that these details directly contradicted the husband’s averments in his responses to the application filed under Section 12 of the DV Act, as well as the application under Section 23 of the DV Act seeking interim custody of the female child.
In essence, the Court noted that to retain custody of the child, the husband first orchestrated a fabricated story to remove her from the mother’s care. Subsequently, by deceitfully gaining his wife’s trust, he compelled her to vacate the government accommodation under the pretext of purchasing a private flat. Through this scheme, he effectively separated the wife from the child’s company and maintained the child’s custody for nearly two years.
Based on the foregoing deliberations, the scheme of the relevant statutes, the conduct and demeanour of the husband, and the mother’s unique and pivotal role in the custody of a female child, the Court directed that the custody of the child be entrusted to the wife in the following manner:
- Within three days of receiving a copy of this order, the father was directed to peacefully and cordially hand over the custody of the child to the wife at her residence in Delhi.
- In the event of non-compliance, the wife was permitted to approach the Chairman, the Child Welfare Committee, Lucknow. Upon such request, the Chairman was directed, with the assistance of a lady police officer and a qualified child counsellor, ensure the safe retrieval and transfer of the child to the mother.
-
Prima facie, the Court stated that it seemed that the husband was a conniver who may misuse his official position of Deputy Chief Engineer, Indian Railways, to influence the proceedings and obstruct the wife’s lawful right. Therefore, the Police Commissioner, Lucknow, was directed to keep the husband under surveillance until the order was duly complied with.
So far as the visitation rights of the father were concerned, the Court stated that he had the liberty to take recourse as available under the law. Similarly, the wife was at liberty to raise all her claims, including maintenance, before the competent court.
Accordingly, the application was allowed.
[X v. State of UP, Application U/S 482 No. 41453 of 2024, decided on 30-05-2025]
Advocates who appeared in this case :
For the appellant: Mahendra Bahadur Singh and Vijeta Singh
For the respondents: GA
