Mother By Reason Of Biological Considerations Is Ordinarily Best Positioned To Secure Minor’s Welfare: Allahabad High Court Grants Custody Of Child To Wife

The dispute before the High Court related to the custody of a 21-month-old child presently in the custody of his father (respondent), who is working as a constable in the U.P. Police.

The Single Bench of Justice Sandeep Jain held, “While the father plays an essential role in the child’s upbringing, it is the mother who, by reason of biological and nurturing considerations, is ordinarily best positioned to secure the physical and emotional welfare of the minor. Accordingly, in adjudicating the present habeas corpus petition, the Court must be guided by the paramount consideration of the minor’s welfare.”

"It is apparent that as of now, keeping in view the tender age of the corpus, it is in the best interest that his custody is handed to the petitioner because for the nutritional needs, he is fully dependent on the petitioner. It will be an injustice to deprive the corpus from the custody of his mother”, it added.

Factual Background

The petitioner mother submitted that the corpus was illegally taken away by the respondent father, and an FIR was registered under Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015, against him. The petitioner had also filed a writ petition seeking custody of her child. A Coordinate Bench of the High Court had dismissed the petition on the ground that the parties could seek custody of the minor under the Guardian and Wards Act, 1890. That order was challenged by the petitioner by filing a Special Appeal, which was allowed by a Division Bench of the Court, and the matter was restored to its original number for adjudication on merits.

Another factor which influenced the decision of the Division Bench was an ex parte order passed by the Child Welfare Committee, whereby the custody of the minor was handed to the petitioner, but during the pendency of the appeal, that order was set aside by the Children Court/Special Judge (POCSO Act). There was no judicial order in favour of the petitioner, whereby the legal custody of the minor had been handed to her. It was in such circumstances that the Court had to decide the habeas corpus petition on the merits.

Reasoning

The Bench adjudicated upon the issue at hand, considering that it was incumbent upon the Court to identify the individual best suited to safeguard the minor’s well-being and interests. Referring to Section 6 of the Hindu Minority and Guardianship Act, 1956, the Bench reiterated that ordinarily, the custody of a minor who has not attained the age of five years is entrusted to the mother. The Bench took note of the fact that there was no possibility of reconciliation between the parties, and the husband was not paying any maintenance to the wife. It was further noticed that the petitioner was dependent on her parents.

The Bench also discarded the allegations regarding alcoholism and the mental condition of the petitioner. Taking note of the fact that she was suffering from abdominal pain and the doctor advised her to refrain from taking spicy food, the Bench stated, “On the basis of the above prescriptions, it cannot be said that the petitioner is not in a fit physical and mental condition to look after the welfare of the minor corpus.”

The petitioner had also brought to the Court’s notice a WhatsApp chat of the respondent, in which he disclosed that he had solemnised a marriage with another woman and was residing with her. The WhatsApp chat also contained photographs of the respondent and the said woman. Upon perusal of the photographs in the chat, the Bench, without expressing any opinion regarding the nature of their relationship, opined that the respondent was in the company of another woman.

“The respondent was suspended by the S.S.P., Jaunpur, on 12.03.2026, which reflects the respondent’s conduct. This attitude and behaviour demonstrate that he is not at all concerned with the orders of this Court, which is particularly distressing given that he is a member of the disciplined force as a police constable, who has shown open defiance of the Court’s orders”, it added.

Taking note of the respondent father’s suspension and defiance of the orders of the Court, the Bench allowed the petition. The Bench thus directed the respondent husband to hand over the child to the petitioner wife. “In view of this, the respondent is permitted to exercise visitation rights and may visit the minor twice a month after informing the petitioner in advance. The visits shall take place at the nearest police station”, it ordered.

Cause Title: A v. State Of U.P. And 7 Others (Neutral Citation: 2026:AHC:99586)

Appearance

Petitioner: Advocates Ajay Singh Sengar, Kamal Dev Singh Chanchal, Kamla Kant Mishra, Varun Mishra

Respondent: Government Advocate, Advocates Mariya Khatoon, Ram Kesh

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