Justice S.G. Chapalgaonkar, Bombay High Court
Natural Guardianship Vests With Mother Post Father's Demise Unless Detrimental To Minor's Welfare: Bombay High Court
|A writ was petition filed by 25-year-old woman who had challenged an order passed by the District Judge denying her interim custody of her minor daughter.
The Bombay High Court has held that upon the death of a father, the mother becomes the natural guardian of a minor child and cannot be denied interim custody unless there is clear and compelling evidence that her guardianship would harm the welfare of the child.
A writ was petition filed by 25-year-old woman who had challenged an earlier order passed by the District Judge denying her interim custody of her minor daughter.
A Bench of Justice S.G. Chapalgaonkar held, “merely because grandparents or other relatives had nurtured the child for some period, the natural guardian cannot be denied right of custody of child unless it is shown that welfare of minor would be jeopardize.”
The Court referred to the statutory provisions under Section 6 of the Hindu Minority and Guardianship Act, 1956, which lays down the legal framework for guardianship in such matters. The Court added, “Sub-clause (a) of Section 6 clearly stipulates that in case of an unmarried girl, the father and after him, the mother is natural guardian of minor. Even it stipulates that in case of minor who has not completed five years, the mother would have precedence in the matter and custody of minor. Therefore, legally speaking, the minor girl child should be given in custody of mother unless it is established that she has adverse interest or incapacity to secure welfare of minor.”
Advocate S.R. Bagal appeared for the petitioner and Advocate U.B. Bilolikar appeared for the Respondents.
Background
Petitioner was previously married the father of the child. The couple obtained a divorce by mutual consent in 2024, and as part of the divorce arrangement, custody of minor daughter was granted to the father. An undertaking was also submitted by the child’s paternal grandmother, assuring that she would look after the child.
However, following fsther’s death in January 2025, the child continued to reside with her paternal grandparents. In the aftermath, the grandparents initiated proceedings seeking legal guardianship of minor. Simultaneously, Petitioner filed an application seeking interim custody of her daughter, which was rejected by the District Judge. Aggrieved by this decision, petitioner approached the High Court through a writ petition.
Findings
The Bombay High Court reversed the District Judge’s order and allowed petitioner’s petition.
The Court added, “When it comes to a girl child aged about 5 ½ years, the Courts cannot be oblivious of fact that it is the mother who can be the best person to have custody. The care and support by natural mother to a child is unparalleled and cannot be replaced by anyone else.”
The Court also took into account the present circumstances of the petitioner. It was noted, “Now, petitioner/mother is only natural guardian. She has placed on record the material to indicate that she is now engaged in business and has sufficient earning to maintain herself and child. Even, better education of child can be achieved at Nanded where the facilities of education are much more better than the place of respondents.”
However, in recognition of the emotional bond between the child and her paternal grandparents, the Court directed petitioner to provide an undertaking before the District Judge, assuring that the grandparents would be allowed regular visitation rights. These include access on weekends, during major festivals, and school vacations, to maintain continuity in the child’s emotional and familial relationships.
Accordingly, the High Court allowed the writ petition and directed that interim custody of the child be handed over to the mother.
Cause Title: Parvati v. Vyankat & Anr., [2025:BHC-AUG:18398]