In a significant ruling concerning child guardianship and welfare, a division bench of the Allahabad High Court comprising Justice Saral Srivastava and Justice Siddharth Nandan set aside a Family Court order that had denied custody of a six-year-old child to his natural mother. Allowing the first appeal, the High Court held that the welfare of a minor of tender age is best secured in the care of the natural mother rather than other relatives. The Court directed that the custody of the child be handed over to the mother forthwith, observing that a young child separated from his mother cannot form an intelligent preference, and granted defined visitation rights to the paternal grandmother.
Background of the Case
The appellant mother married her husband on December 4, 2017, and their son was born on January 19, 2020. Tragically, her husband passed away on September 22, 2020, when the child was only eight months old.
According to the appellant, her signatures were obtained on blank papers on November 17, 2020, under the pretext of processing an insurance claim, which were subsequently used to fabricate an agreement stating that the child would stay with the paternal grandmother in exchange for Rs. 4,50,000. She was thereafter prevented from meeting her son, who was then barely ten months old. Out of the deceased husband’s Rs. 25,00,000 insurance claim, only Rs. 12,50,000 was given to the appellant, while the remaining Rs. 12,50,000 was transferred to her deceased husband’s brother.
The appellant filed a custody suit (Misc. Civil Case No. 194 of 2021) under Sections 7 and 25 of the Guardians and Wards Act, 1890 on August 6, 2021. The respondent grandmother contested the case and filed a counter-claim under Section 7(1)(b) of the Act on July 2, 2024. On July 21, 2026, the Additional Principal Judge, Family Court No. 2, Agra dismissed the mother’s petition, prompting the present appeal before the High Court under Section 19 of the Family Courts Act, 1984 and Section 47 of the Guardians and Wards Act, 1890.
Arguments by the Parties
Advocate Manu Khare, representing the appellant mother, argued that the mother is the natural guardian and that the welfare of the child is best served under her guardianship. Relying on the decision in Vedika Dwivedi Vs. State of U.P. and others (which cited Sahil and Another Vs. State of U.P. and Others), counsel contended that maternal custody for a child of tender age is an established legal principle arising from human nature, subject only to known exceptions such as the mother remarrying a stranger or leading a demonstrably immoral life. Counsel submitted that the alleged compromise dated November 17, 2020, and an alleged Will dated July 10, 2020, were unproven, forged, and could not legally divest a natural guardian of statutory custody rights.
Opposing the appeal, Senior Counsel Rakesh Pande, assisted by Advocate Piyush Tripathi, contended that the appellant had deserted the child at a tender age. Counsel submitted that the child had been living with his 60-year-old grandmother since infancy in a conducive environment alongside her other two sons, who provide financial support. Reliance was placed on the statement of the child recorded before the trial court as D.W.-5 on April 20, 2026, where the child referred to his uncle and aunt as father and mother and wished to stay with the grandmother. The respondent also relied on the compromise agreement dated November 17, 2020, and the alleged Will of the deceased father dated July 10, 2020, bequeathing guardianship to the grandmother.
The Court’s Analysis and Findings
Examining the status of guardianship under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the High Court cited the Supreme Court’s three-judge bench ruling in Githa Hariharan (MS) and Another Vs. Reserve Bank of India and Another. The Court noted that the statutory term “after” must be construed as “in the absence of.” Because the father is deceased, the mother stands as the sole natural guardian entitled to act on behalf of the minor.
The bench rejected the respondent’s reliance on the alleged compromise and Will, noting that the originals were neither produced nor proved in accordance with law. The Court held: “At this juncture, it may also be noted that a compromise cannot be regarding the claim as a natural guardian, over the custody of a child or one of the natural guardian setting out a Will with respect to their child in favour of another member of the family, by way of exclusion of the rights of the mother as a natural guardian.”
Addressing the grandmother’s claim of abandonment, the Court held that the mother had initiated legal proceedings promptly after being denied custody. The bench also observed that maternal separation at such an age constitutes an infringement of the child’s natural rights: “The ‘nature’ is said to have given a special coherence between a mother and a child and when the two are separated, especially when the child is of a tender age and restrained to meet his/her mother, it is not short of a deprivation of a natural right, to know his own parents.”
On the weight to be attached to the statement of a six-year-old child, the Court referred to Ms. Nasrin Begam and Another Vs. Prof. Mohd. Sajjad and another and the Supreme Court decision in Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, reiterating that a child of tender age lacks the capacity to express an intelligent preference: “The fact that the child was living with his grandmother or his extended family and on being interviewed he had expressed his desire to remain in custody of the said person, cannot be of much consequence; and this Court as well as the Apex Court on numerous occasions when the lis pertains to the custody of a minor child, had declined to interview the child, expressing that the capacity to give an ‘intelligent preference’, is lacking in these circumstances.”
The Court further held that the possibility of tutoring could not be ruled out and noted: “Merely because certain relatives have taken care of the child, cannot be a justification for taking the child out of the custody of his mother, who has a preferential right being a natural guardian, and especially when the child is not in a position to give an intelligent preference…”
Regarding concerns about uprooting the child after five years, the Court drew support from the Supreme Court judgment in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, observing that any initial transition issues would be resolved over time under maternal care. Finding that the mother possessed adequate financial assets and that financial comparability was balanced, the bench ruled that financial dependency alone cannot deprive a mother of custody.
The Decision
The High Court allowed the appeal and set aside the Family Court’s judgment dated July 21, 2026. The Court directed that custody of the minor child be handed over to the appellant mother forthwith, while dismissing the counter-claim of the grandmother.
To protect the welfare of the child during the transitional period, the Court granted specific visitation rights:
- For the first six months, the grandmother is entitled to spend one full day each week (from 8:00 AM to 6:00 PM) with the child at the appellant’s residence.
- For the subsequent six months, the grandmother is permitted to visit the appellant’s residence on every second weekend (Saturday or Sunday).
- The respondent was granted liberty to approach the Court after one year for any further modification of visitation rights, if required.
Case Details:
Case Title: Smt. Sudha Tomar Vs. Smt. Shakuntala Devi
Case No.: First Appeal No. 798 of 2026
Bench: Justice Saral Srivastava and Justice Siddharth Nandan
Date: October 12, 2026
