Can’t Deny Custody Of Minor To Mother Because She Did Not Have Daughter’s Company At Time Of Separation: Allahabad HC
The Allahabad High Court was considering a father's Appeal challenging an ex-parte order granting minor daughter's custody to the respondent-mother.
The Allahabad High Court recently clarified that merely because the mother had been deprived of the company of her daughter at the time when the couple separated and fact that the daughter continued to be in the father’s company for sometime itself would not be sufficient circumstance to deny custody of the minor to the mother who is her natural guardian.
The Appeal before the High Court was filed by the appellant-father challenging an order of the Family Court under Sections 7 and 12 of the Guardians and Wards Act, 1890. The order was ex parte whereby custody of the minor daughter, aged 4 years and 3 months had been handed over to the respondent-mother.
The Division Bench comprising Justice Ashwani Kumar Mishra and Justice Donadi Ramesh asserted, “No doubt transfer of custody of a minor may cause psychological stress for the child but the larger issue of custody would require a delicate balancing of interests of the parties.
Advocate Ayush Kaushik represented the Appellant while Advocate Ajay Kumar Singh represented the Respondent.
Factual Background
The marriage was solemnized between the appellant and respondent in the year 2010 and two children were born out of their wedlock. Firstly, a son was born in 2013 and thereafter, a daughter was born in the year 2020. Differences arose between the parties and they started living separately. Proceedings under Section 13 of the Hindu Marriage Act, 1955 was instituted by the appellant-husband which is still pending. The respondent - wife filed a petition for custody of the minor daughter, which was allowed by the Family Court.
Reasoning
The Bench noticed that the son born out of the wedlock has been presently studying in a boarding school at Faridabad. The payment of fee and expenses etc. are being borne by the appellant - husband. The minor daughter is however living with the father.
“Admittedly, the mother is the natural guardian of minor child below 5 years of age and ordinarily, she would be allowed to have the custody of her minor child, unless for specific reasons, a different course is warranted. It is otherwise settled that in the matter of child custody, primary concern is the welfare and well being of the child”, the Bench explained.
It was further noted by the Bench that the mother in this case is a graduate and is presently living with her parents. She is all alone in the sense that none of her two children are with her and there are no allegations made against her which may indicate that welfare of the minor daughter would be prejudiced in the custody of mother.
“Merely because the mother has been deprived of the company of her daughter at the time when the couple separated and fact that the daughter had continued to be in company of the father for sometime itself would not be sufficient circumstance to deny custody of the minor daughter to the mother who is her natural guardian”, the Bench stated while also adding, “Various physical, emotional and psychological needs of the four year old daughter would be better protected in the care and custody of her mother.”
Dismissing the Appeal, the Bench held, “The Family Court has otherwise given visitation rights to both parents on fortnightly basis. In case there is any difficulty or parties desire any change in the terms of visitation it shall be open for them to make appropriate application before the court concerned which would pass necessary orders in respect of alteration in terms of visitation.
Cause Title: Amit Dhama v. Smt Pooja And 2 Others (Neutral Citation 2025:AHC:5962-DB)
Appearance:
Appellant: Advocates Ayush Kaushik,Pranvesh
Respondent: Advocates Ajay Kumar Singh,Ashish Kumar Singh
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