Bombay High Court: The present writ petition was filed by the biological mother (Petitioner) of a five and half year-old daughter, challenging the rejection of her interim custody application by the District Judge. A Single Judge Bench of S.G. Chapalgaonkar, J., allowed the petition and granted interim custody of the minor girl to the mother, holding that under Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (the ‘Act of 1956’), the mother was the natural guardian after the father’s death, unless it was established that she had an adverse interest or was incapable of securing the welfare of the minor.
Background:
The couple got married in 2018 and had a daughter together. On 30-7-2024, they obtained a divorce by mutual consent, and custody of the child was granted to the husband, based on an undertaking by the paternal grandmother to take care of her. The father passed away on 5-1-2025, leaving the minor girl in the care of her paternal grandparents.
Subsequently, the grandparents (Respondents) filed an application for seeking declaration of their appointment as guardian of the minor girl. In response, the petitioner also filed an application claiming custody of the minor along with an application for interim custody. However, the District Judge rejected the petitioner’s application for interim custody.
The petitioner’s counsel argued that, as the natural guardian following her husband’s death, she was entitled to custody of the minor and could provide better care for her minor daughter than the grandparents, who were elderly and suffering from several health issues. It was further alleged that, since the grandparents resided in a rural area where educational facilities were inadequate, and the petitioner lived in Nanded where she could provide better care and access to best educational opportunities, the welfare of the minor would have been well achieved by granting custody to the petitioner.
Consecutively, the counsel for the respondents contended that the petitioner had abandoned the child following the divorce, and that the grandparents had since taken care of her, ensuring she received the best possible education. They argued that the child was comfortable in their custody, reluctant to go with her mother, and that disturbing the existing custody environment at that stage would have had a serious impact on her mental and physical health. Therefore, they asserted that the welfare of the child would have been best achieved by continuing her custody with the respondents.
Analysis and Decision:
The Court acknowledged that while the child had been in the custody of the respondents for almost the last four years, despite that, the Court had to primarily look for the welfare of the child. The Court referred to Section 6(a) of the Act of 1956, which stated that in the case of an unmarried girl, the father, and after him, the mother, was the natural guardian of the minor, and in the case of a minor who had not completed five years, the mother would have precedence in the matter of custody of the minor. Thus, the Court opined that the minor girl child should be given in custody of mother unless it was established that she had adverse interest or incapacity to secure welfare of minor.
The Court observed that, at the time of divorce, the petitioner was dependent on her parents and had no income, and accepted the child’s custody with the husband as he was available to care for the child with the respondents’ help, however, this did not mean she abandoned the child. The Court noted that circumstances had drastically changed after the father’s death, as the petitioner was now engaged in business with sufficient income to support herself and the child. Moreover, better education could be provided at Nanded, where facilities were better to those at the respondents’ place.
The Court emphasised that merely because grandparents or other relatives had nurtured the child for some period, the natural guardian could not be denied right of custody of child unless it was shown that welfare of minor would be jeopardised. The Court noted that, as the child grew older, the difficulties in handing over custody would increase, and nothing was brought on record to show that the petitioner was incapable of appropriately caring for the minor girl, or that maintaining custody with the grandparents would better ensure her welfare.
The Court therefore allowed the petition and granted interim custody of the minor to the petitioner, with directions ensuring that the respondents would not be prevented from accessing the child and shall be entitled to temporary custody of the minor for a specified period, as fixed by the District Judge.
[Parvati v. Vyankat, Writ Petition No. 6529 of 2025, decided on 15-7-2025]
Advocates who appeared in this case :
For the Petitioner: S.R. Bagal, Advocate
For the Respondents: U.B. Bilolikar, Advocate
