Case Note & Summary
The case involves a custody dispute between a husband and wife over their 5-year-old daughter. The parties married on 07.09.2014 and had a female child on 02.01.2017. After marital differences, the wife and child stayed at her parental home. On 27.02.2021, the husband took the child under a pretext and did not return her. The wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking interim custody. The Magistrate granted temporary custody to the mother, which was upheld by the Sessions Court. The husband challenged these orders by way of a criminal writ petition before the High Court. The core legal issue was whether the father or mother should be preferred for temporary custody of a female child aged 5 years 5 months. The petitioner argued that he was the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956, and that the mother had no right to custody. The respondent contended that the welfare of the child required her to be with the mother, especially for a female child of tender years. The High Court analyzed Section 6 of the Hindu Minority and Guardianship Act, 1956, which provides that the natural guardian of a minor is the father, but after the age of 5 years, the mother is entitled to custody of a female child. The court held that this provision reflects the legislative intent that the mother is the best person to look after a female child of tender years. The court emphasized that the welfare of the child is paramount and that temporary custody should be granted to the mother pending final determination. The court dismissed the petition, upholding the orders granting temporary custody to the mother.
Headnote
A) Family Law - Child Custody - Temporary Custody - Welfare of Child - Mother's Preference - The court considered the question of temporary custody of a 5-year-old female child pending final determination of custody. The father challenged orders of lower courts granting temporary custody to the mother. The High Court held that for a female child of tender years, the mother is the natural guardian and her custody is preferred, as the welfare of the child is paramount. The court dismissed the petition, upholding the orders granting temporary custody to the mother. (Paras 2, 6-8) B) Family Law - Hindu Minority and Guardianship Act 1956 - Section 6 - Natural Guardian - The court interpreted Section 6 of the Hindu Minority and Guardianship Act, 1956, which provides that the natural guardian of a minor child is the father, but after the age of 5 years, the mother is entitled to custody of a female child. The court held that this provision reflects the legislative intent that the mother is the best person to look after a female child of tender years. (Paras 6-7) C) Family Law - Protection of Women from Domestic Violence Act 2005 - Section 12 - Interim Custody - The respondent/wife had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005, seeking interim custody of the child. The court held that the Magistrate has the power to grant interim custody under the Act, and the welfare of the child is the primary consideration. (Para 4)
Issue of Consideration
Whether the father or the mother shall be preferred for temporary custody of a female child aged 5 years 5 months.
Final Decision
The High Court dismissed the petition, upholding the orders of the lower courts granting temporary custody of the child to the mother.
Law Points
- Welfare of the child is paramount
- Mother is natural guardian for female child of tender years
- Temporary custody pending final determination
- Section 12 Protection of Women from Domestic Violence Act 2005
- Section 6 Hindu Minority and Guardianship Act 1956
