High Court
Facts
wp-6529-2025 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 6529 OF 2025 Parvati @ Swati W/o. Vitthal ShindeAge : 25 years, Occ. : Business & Household,R/o. Mangalsawangi, Tq. Kandhar,At Present R/o. Anandnagar, Nanded,Tq. & Dist. Nanded...PetitionerVERSUS1.Vyankat s/o Dattatray ShindeAge: 75 Yrs., Occu: Agri.2. Gangabai w/o Vyankat ShindeAge: 70 Yrs., Occu: Household,Both R/o. Khairka, Tq. Mukhed,District. Nanded..Respondents ...Advocate for Petitioner : Mr. S.R. BagalAdvocate for Respondent Nos.1 & 2 : Mr. U.B. Bilolikar... CORAM : S. G. CHAPALGAONKAR, J. RESERVED ON : JUNE 23, 2025 PRONOUNCED ON : JULY 15, 2025JUDGMENT :-1.The petitioner impugns order dated 22.04.2025 passedby learned District Judge, Mukhed, District Nanded below Exhibit-5 inCivil Misc. Application No.04 of 2025. 2.The petitioner had married with late Vitthal Shinde in theyear 2018. The couple was blessed with a daughter namely Sanvi. On30.07.2024, couple divorced by mutual consent. Custody of minor
Legal Reasoning
wp-6529-2025 judg.odt(5)“6. Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of the minor’sperson as well as in respect of the minor’s property (excluding hisor her undivided interest in joint family property), are—(a)in the case of a boy or an unmarried girl—the father, andafter him, the mother: provided that the custody of a minorwho has not completed the age of five years shall ordinarily bewith the mother;(b)in case of an illegitimate boy or an illegitimate unmarriedgirl—the mother, and after her, the father;(c)in the case of a married girl—the husband:Provided that no person shall be entitled to act as the naturalguardian of a minor under the provisions of this section—(a)if he has ceased to be a Hindu, or(b)if he has completely and finally renounced the world bybecoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).”7.Sub-clause (a) of Section 6 clearly stipulates that in caseof an unmarried girl, the father and after him, the mother is naturalguardian of minor. Even it stipulates that in case of minor who hasnot completed five years, the mother would have precedence in thematter and custody of minor. Therefore, legally speaking, the minorgirl child should be given in custody of mother unless it is establishedthat she has adverse interest or incapacity to secure welfare of minor.8.It is trite law that the Courts are empowered to hand overcustody of minor. The welfare of minor is supreme considerationthough provisions of special statutes govern rights of parents or wp-6529-2025 judg.odt(6)guardians. Turning back to facts of present case, it can be observedthat the parents of minor could not continue matrimonial relationshipwhich led to divorce by mutual consent. It is also matter of recordthat after marriage petitioner mostly resided at maternal home withher parents and had very short period of cohabitation with husband.The contents of divorce decree depicts that petitioner acceptedcontinuation of minor’s custody with husband, with assistance ofrespondent no.2.9.As observed in aforesaid paragraphs, at this interimstage, the Court will have to primarily look for welfare of child. Whenit comes to a girl child aged about 5 ½ years, the Courts cannot beoblivious of fact that it is the mother who can be the best person tohave custody. The care and support by natural mother to a child isunparalleled and cannot be replaced by anyone else. In present case,in light of aforesaid facts, the observations of Hon’ble Supreme Courtin case of Vivek (supra) particularly para 10 are relevant which readsthus :“10. We cannot but observe that the learned Single Judge hasnot endeavored to elicit the child's attitude towards his father.Admittedly, the child, after his birth, was with his parents forabout 10 years till the death of his mother. He was separatedfrom the father in 2021 and has been living with hisgrandparents, who cannot have a better claim than the father,who is the natural guardian. There is no allegation of anymatrimonial dispute when the mother of the child was alive nor wp-6529-2025 judg.odt(7)a complaint of abuse perpetrated against the wife or son. Thefather, the natural guardian, we reiterate, is well employed andeducated and there is nothing standing against his legal rights;as a natural guardian, and legitimate desire to have the custodyof his child. We are of the opinion that the welfare of the child,in the facts and circumstances of this case, would be best servedif custody is given to the father.”10.The aforesaid observations would show that merelybecause grandparents or other relatives had nurtured the child forsome period, the natural guardian cannot be denied right of custodyof child unless it is shown that welfare of minor would be jeopardize.Similarly, in case of Gautam Kumar Das Vs. NCT of Delhi and Others4,the observations in para 12 are relevant which read thus :“12. Insofar as the fitness of the appellant is concerned, he is welleducated and currently employed as Assistant General Manager(Class A Officer) in Central Warehousing Corporation, Delhi. Theappellant's residence is also in Delhi whereas respondent No. 6 towhom the custody of the minor child was handed over to byrespondent No. 5 is residing at a remote village in West Bengal.Apart from taking care of his children, the appellant can verywell provide the best of the education facilities to his children.The child Sugandha Das, who lost her mother at tender age,cannot be deprived of the company of her father and naturalbrother. At the relevant time, the appellant had no other optionbut to look upon the sisters of his deceased wife to nurture hisinfant child.”42024 AIR (SC) 4029 wp-6529-2025 judg.odt(8)11.In present case, when petitioner divorced from herhusband, she left custody of minor with him, however that does notmean that she had abandoned the child. The record shows thatpetitioner was herself depending on her parents at the time of divorceand she has no source of income at all. Further, when father wasreadily available to take care of child, petitioner might have thought itfit to maintain custody with him. The record indicates thatcircumstances have been drastically changed after minor lost herfather. Now, petitioner/mother is only natural guardian. She hasplaced on record the material to indicate that she is now engaged inbusiness and has sufficient earning to maintain herself and child.Even, better education of child can be achieved at Nanded where thefacilities of education are much more better than the place ofrespondents.12.Perusal of impugned order shows that the learned DistrictJudge emphasized on fact that the child is residing with grandparentsfor more than four years and handing over custody at this stage mayhave adverse impact on health of child. No doubt, aforesaid factorsare relevant, but as child grows in age, the difficulties would be morein the matter of handing over custody. In present case, nothing isbrought on record to show that petitioner/natural mother is not in aposition to take appropriate care of minor girl or maintaining custodywith grandparents would ensure better welfare. wp-6529-2025 judg.odt(9)13.In that view of matter, writ petition deserves to beallowed in terms of prayer clause (C) and it is accordingly allowed.14.However, considering the fact that minor is in the custodyof grandparents for longer period and looking to fact that they arealso interested in taking care of minor, petitioner shall file anundertaking before learned District Judge that respondents would notbe prevented access to child on Saturdays or/and Sundays any timefrom 10.00 am to 06.00 pm and permit them to take away the child,if they desire. Even on days of festivals, birthday, if respondents wishto visit the child, they shall not prevented.15.During Diwali, Christmas or Summer vacationsrespondents shall be entitled for temporary custody of minor for suchperiod as fixed by Learned District Judge on their specific application.16.Writ Petition stands disposed of in aforesaid terms. Theobservations made in this order are only for disposal of writ petition.Final decision shall be taken by learned District Judge withoutinfluenced by the observations in this order. (S.G. CHAPALGAONKAR, J.)17.Learned advocate appearing for respondents seeks stay oforder. However, for reasons stated in order, prayer is rejected. (S.G. CHAPALGAONKAR, J.)Mujaheed//
Arguments
wp-6529-2025 judg.odt(2)Sanvi was maintained with husband on undertaking of respondentno.2 that she will take care of her. 3.Unfortunately, on 05.01.2025, petitioner’s husbandpassed away. Thereafter, respondents/paternal grandparents of minorSanvi filed Civil Misc. Application No.02 of 2025 before learnedDistrict Judge seeking declaration of their appointment as guardian ofminor. Immediately thereafter, the petitioner filed Civil Misc.Application No.04 of 2025 claiming custody of minor Sanvi alongwith an application at Exhibit-5 for interim custody. Learned DistrictJudge, Mukhed vide impugned order dated 22.04.2025 rejectedapplication for interim custody. Hence, present writ petition.4.Mr. Bagal, learned advocate appearing for petitionersubmits that minor Sanvi is aged about 5 ½ years. After death of herfather, only petitioner is natural guardian. Being mother, she isentitled for custody of minor. According to Mr. Bagal, thegrandparents cannot claim better right of custody as against mother,who can take better care of minor daughter. Mr. Bagal would submitthat respondents are old aged persons and facing several healthissues. They are residing in rural area where the facilities ofeducation are not upto mark. The petitioner is residing at Nandedwhere she can take better care and provide best educational facilities.According to Mr. Bagal, the welfare of minor can be well achieved byhanding over custody to petitioner. In support of his contentions, he wp-6529-2025 judg.odt(3)relies upon observations of Hon’ble Supreme Court in the case ofTejaswini Gaud and Ors Vs. Shekhar Jagdish Prasad Tewari andOthers1, Vivek Kumar Chaturvedi and Another Vs. State of UttarPradesh and Others2 and the judgment of High Court of Madras incase of R. Munuswamy and Another Vs. J. Raja in C.M.A. No.2162 of2018 decided on 14.09.2023.5.Per contra, Mr. Bilolikar, learned advocate appearing forrespondents submits that petitioner resided hardly for a period of oneyear with her husband after the marriage. The child was in custody ofhusband and paternal grandparents. Even when the couple separatedunder decree of divorce by mutual consent, custody of minor childwas handed over to husband as per undertaking of respondentno.2/grandmother assuring court to take care of minor. He submitsthat the infant child was abandoned by petitioner. Mr. Bilolikar wouldfurther invite attention of this Court to the document depicting thatrespondents have ensured best education to minor Sanvi. He wouldfurther submit that when the child was interrogated by the learnedDistrict Judge, it was noted that she was comfortable in the custody ofgrandparents and reluctant to go with mother. According to Mr.Bilolikar, the welfare of child can be achieved by continuing hercustody with respondents. He would submit that disturbing custodyof child at this stage would have serious impact on her mental and1AIR 2019 SC 231822025 (2) JT 296 wp-6529-2025 judg.odt(4)physical health. Mr. Bilolikar submits that the learned District Judgehas taken into consideration all relevant material and ruled in favourof maintaining custody of minor with respondents. Therefore, nointerference is called in the impugned order in exercise of writjurisdiction by this Court. In support of his contention, he relies uponthe observations of Hon’ble Supreme Court in the case of Nirmala Vs.Kulwant Singh and Ors3. 6.Having considered submissions advanced and onconsideration of material on record, it is evident that the issue ofinterim custody of minor girl aged about 5 ½ years is raised in thispetition. Undisputedly, the child is in custody of respondents foralmost last four years. Even when petitioner and her husbandobtained decree of divorce by mutual consent, custody of minor wasretained by husband and for care of child, respondentno.2/grandmother has given an undertaking. Unfortunately, on05.01.2025, the husband passed away and minor remained inexclusive custody of respondents. At this stage, petitioner- Motherstepped into action and initiated her efforts for custody of minor. Atthis stage, reference can be given to Section 6 of Hindu Minority andGuardianship Act, 1956, which reads thus :3AIR 2024 SC 2344