Case Note & Summary
The petitioner, a mother, filed a writ petition before the Bombay High Court, Aurangabad Bench, challenging the order dated 22.04.2025 passed by the District Judge, Mukhed, which rejected her application for interim custody of her minor daughter aged about 5½ years. The petitioner had married late Vitthal Shinde in 2018 and the couple had a daughter named Sanvi. The marriage ended in divorce by mutual consent on 30.07.2024; under the divorce decree, custody of the minor child was retained by the husband with an undertaking from the paternal grandmother (respondent no.2) to take care of her. The husband passed away on 05.01.2025, after which the paternal grandparents filed Civil Misc. Application No.02 of 2025 seeking appointment as guardians of the minor. The mother then filed Civil Misc. Application No.04 of 2025 claiming custody along with an application at Exhibit-5 for interim custody, which was rejected by the impugned order. Before the High Court, the mother contended that after the father's death she was the natural guardian under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, that she resided at Nanded and could provide better education and care, whereas the grandparents were old, lived in a rural area, and had health issues. The grandparents argued that the mother had abandoned the child, that the child had been in their custody for about four years, was comfortable with them and reluctant to go with the mother, and that disturbing custody would harm the child's mental and physical health. The court examined Section 6 of the Hindu Minority and Guardianship Act, 1956, and observed that the mother is the natural guardian after the father and that a child below five years should ordinarily be with the mother. The court held that the welfare of the minor is the supreme consideration, and that for a girl child aged about 5½ years the mother is the best person to have custody; the care and support by a natural mother is unparalleled. The court found that merely because grandparents had nurtured the child for some period, the natural guardian cannot be denied custody unless the welfare of the minor would be jeopardised. No material was placed on record to show that the mother was not in a position to take appropriate care of the minor or that custody with the grandparents would ensure better welfare. The mother had demonstrated that she was engaged in business and had sufficient earning, and that better educational facilities were available at Nanded. Accordingly, the writ petition was allowed, the impugned order was set aside, and the court directed that interim custody of the minor daughter be handed over to the mother. The court also directed the mother to file an undertaking before the District Judge to allow the grandparents access to the child on Saturdays or Sundays from 10:00 am to 06:00 pm, to permit them to take the child if they desired, and to allow access on festivals and birthdays. The grandparents were also entitled to temporary custody during Diwali, Christmas, or Summer vacations as directed by the District Judge on specific application. The court clarified that its observations were only for disposal of the writ petition and that the District Judge would decide the final guardianship/custody application uninfluenced by these observations. The request for stay of the order by the respondents was rejected.
Headnote
A) Family Law - Natural Guardianship - Mother as Natural Guardian after Father's Death - Hindu Minority and Guardianship Act, 1956, Section 6 - The father, and after him the mother, is the natural guardian of an unmarried minor girl; after the father's death the mother becomes the sole natural guardian. The court reasoned that merely because grandparents had nurtured the child for some period, the natural guardian cannot be denied custody unless it is shown that her welfare would be jeopardised. No material was produced to show that the mother was unfit or had adverse interest, and the changed circumstances after the father's death entitled the mother to interim custody. (Paras 6-7, 11-13) B) Family Law - Child Custody - Welfare of Minor as Supreme Consideration - Hindu Minority and Guardianship Act, 1956, Section 6 - The welfare of the minor is the paramount consideration though statutes govern the rights of parents and guardians. For a girl child aged about 5½ years, the mother is best suited to provide care and support, which is unparalleled; the District Judge's emphasis on the child's residence with grandparents for four years was not sufficient to deny custody to the natural mother when no better welfare was shown with grandparents. The court granted interim custody to the mother with directions to ensure grandparents' access. (Paras 8-12, 14-15)
Issue of Consideration
Whether the learned District Judge erred in rejecting mother's application for interim custody of minor child aged about 5½ years under Section 6 of Hindu Minority and Guardianship Act, 1956, and whether welfare of minor child lies with mother or paternal grandparents.
Final Decision
Writ petition allowed; impugned order dated 22.04.2025 passed by District Judge, Mukhed below Exhibit-5 in Civil Misc. Application No.04 of 2025 set aside; interim custody of minor daughter Sanvi to be handed over to petitioner/mother; petitioner to file undertaking before District Judge that respondents/grandparents will have access to child on Saturdays/Sundays from 10 am to 6 pm and may take child away if they desire; also access on festivals and birthdays; respondents entitled to temporary custody during Diwali, Christmas, or Summer vacations as fixed by District Judge on application; final decision to be taken by District Judge without being influenced by observations; stay sought by respondents rejected.
Law Points
- Welfare of minor is paramount
- Mother is natural guardian after father's death under Section 6(a) Hindu Minority and Guardianship Act
- 1956
- Custody ordinarily with mother for child under five years
- Natural guardian cannot be denied custody merely because grandparents nurtured child
- Welfare of child best served by mother
- Access to grandparents to be provided.
