The Allahabad High Court has held that disputes over the custody of minor children cannot be decided merely on the legal rights claimed by either parent, with the welfare and best interests of the children remaining the paramount consideration. Justice Sandeep Jain, after examining the financial, residential and emotional circumstances of the family, directed that custody of two minor children be handed over to their father, Mohammad Zubair Usman, while granting their mother regular visitation and daily video interaction rights.
The order was passed in a habeas corpus petition concerning Huren Zubair, aged about seven years, and Noor Zubair, aged about three years. The children had been residing with their mother, Smt. Wajeehah Wajahat, and their maternal grandfather.
Background
Earlier, on August 17, 2026, the High Court had granted the father temporary custody of the children from 10 am to 6 pm every Sunday and during school vacations and holidays. He was also permitted to interact with them daily through video conferencing between 6 pm and 9 pm.
The father later told the Court that when he went to take temporary custody on a Sunday, a quarrel took place between him and his in-laws and the children were not handed over. He maintained that this prevented him from interacting freely and meaningfully with them.
He expressed willingness to resume cohabitation with his wife and said he was capable of providing proper care, education, financial security and an appropriate environment for the children’s development.
The Court also interacted with the children. It recorded that the father could not establish meaningful interaction with them at that stage as they remained in the lap of their mother and maternal grandfather and appeared comfortable with them. The Court observed that, considering their tender age, their emotional attachment to the persons with whom they had continuously lived could not be overlooked.
Mother Declined To Resume Cohabitation
The mother informed the Court that she held B.Tech and M.Tech degrees in Food Technology but was not presently employed and depended upon her father for sustenance.
She said she was unwilling to resume cohabitation because of alleged harassment and cruelty at her matrimonial home, while acknowledging that she was professionally qualified and capable of earning her livelihood.
The Court attempted reconciliation between the couple, keeping in view both their matrimonial relationship and the interests of the children. However, the effort did not succeed.
The High Court said no meaningful purpose would be served by compelling the wife to resume matrimonial life against her expressed wishes and therefore proceeded to decide the custody issue on its own merits.
Welfare Of Child Is Paramount
Referring to the Supreme Court’s decisions in Yashita Sahu v. State of Rajasthan and Somprabha Rana v. State of Madhya Pradesh, the Court noted that habeas corpus jurisdiction can be exercised in child custody matters and that the welfare and best interests of the child are the controlling considerations.
The Court also discussed its earlier decision in Reshu and Others v. State of U.P. and Others and several authorities concerning the meaning of welfare in child custody disputes.
It reiterated that financial resources alone cannot determine custody and that emotional security, stability, care, education, physical well-being and moral and ethical development must also be taken into account.
Summing up the governing principle, the High Court observed:
“The controlling and paramount consideration is the welfare and best interest of the minor.”
It further said:
“The parental right, though relevant, is necessarily subordinate to the welfare of the child.”
Court Examines Parents’ Present Circumstances
The Court noted that the mother had admitted that she was not presently earning and had no independent source of income. Although she was professionally qualified and capable of earning, the Court said the custody arrangement had to be assessed on the circumstances actually existing on the date of determination rather than on a prospective or hypothetical financial position.
Her father told the Court that he ran a mobile phone shop and was also involved in property and real estate. However, the Court noted that no documentary evidence had been placed before it to establish his actual income or financial resources.
The father, meanwhile, filed a personal affidavit stating that he operated an industrial establishment employing around 20 to 30 people and had sufficient income to support the children. He also disclosed immovable properties, a residential house, a car, three two-wheelers and residential accommodation of about 3,000 square feet.
He assured the Court that he would provide the children with proper schooling and take necessary steps for their physical, educational and overall development. He also said his mother and other family members were available to assist in caring for them.
The Court found that the material before it showed that the father had the financial means and residential infrastructure required to provide a stable and secure living environment.
At the same time, the High Court recognised the children’s existing emotional bond with their mother and maternal grandfather. It said their reluctance to leave them during interaction before the Court could not by itself be treated as a rejection of their father.
The Court said any custody arrangement should preserve the children’s relationship with both parents rather than sever or diminish their bond with either of them.
Custody Handed To Father, Mother Gets Visitation Rights
Considering the children’s age, the parties’ existing financial and residential circumstances, the father’s financial capacity and willingness to take responsibility for their education and upbringing, and the absence of material showing that he was disqualified from having custody, the Court concluded that the children’s welfare and best interests would presently be better served by placing them with their father.
Accordingly, custody of Huren Zubair and Noor Zubair was handed over to Mohammad Zubair Usman.
The Court clarified that granting custody to the father did not extinguish or diminish the children’s relationship with their mother. She was permitted to visit the father’s residence and meet the children every Sunday between 2 pm and 6 pm and to interact with them daily through video conferencing between 6 pm and 9 pm.
The father was directed to ensure that these rights were respected and that neither he nor his family members created any obstruction.
The Court also directed both parents to act with maturity and restraint and refrain from making adverse statements about the other parent in the presence or hearing of the children. State authorities were directed to ensure compliance and provide necessary assistance if required.
Case Title: Mohammad Zubair Usman And 3 Others Versus State Of U.P. And 3 Others
Case No.: Habeas Corpus Writ Petition No. 779 of 2026
Bench: Justice Sandeep Jain
Date: September 28, 2026
