Recently, the Gujarat High Court declined to interfere with a Family Court order refusing to transfer custody of a minor child from the father to the mother. Affirming the settled principle that the welfare of the child is paramount, the Court observed that disturbing a stable and emotionally secure environment would not serve the minor’s best interests.
Brief facts:
The case arose from a custody dispute between divorced parents over their minor son. At the time of separation, the parties had agreed through a formal settlement that the child would remain in the father’s custody. It was not in dispute that the mother had left the matrimonial home when the child was still an infant and that the child had since been continuously residing with the father for several years. Thereafter, the mother approached the Family Court seeking custody under the guardianship laws. The Family Court declined to disturb the existing arrangement, granting the mother only limited visitation rights, which prompted the filing of the appeal before the High Court.
Contentions of the Appellant:
The Appellant contended that the Family Court erred in denying custody and failed to appreciate that the mother is the natural guardian of a child below the age of five years. The Cousel argued that the divorce deed, which recorded the custody arrangement, was executed under coercion and undue influence and was therefore void ab initio under Section 23 of the Indian Contract Act, 1872. The Appellant further asserted that she was better placed to provide for the child’s upbringing, citing her higher educational qualifications, stable employment, ownership of a residential flat, and ability to offer superior living conditions conducive to the child’s overall development.
Contentions of the Respondent:
The Respondent submitted that the mother had voluntarily relinquished custody through the divorce deed, which had never been challenged and therefore continued to operate validly. Emphasis was placed on the fact that the child had been in the father’s care for approximately three and a half years, during which he had been enrolled in a CBSE school and was performing well academically and in extracurricular activities. The Counsel argued that the child was emotionally settled and closely bonded with the father, who had a stable income sufficient to meet all needs.
Observation of the Court:
The Court observed that “the welfare of the child is paramount and is to be considered. It is true that the appellant-mother is a natural guardian; however, the respondent-father is a natural guardian as well. It is not in dispute that the appellant-mother left the child when he was 16 months old and substantial time is passed and now the child is four and half years.”
The Bench noted, upon its interaction with the minor, that “the child is being taken care of in a proper, decent and satisfactory manner. This Court did not find any shortcomings in the grooming or upbringing of the child. This Court is satisfied that though the child is of the tender age of four and half years, possesses all the etiquettes, discipline and courtesies. The child shares a close bond with his father.”
The Court held that “there is nothing on record and the applicant is also not able to demonstrate that the child’s welfare is being compromised in any manner in current living situation with the opponent.”
Further, the Court observed that “to bring out the child from the custody of the father with whom he is living for last 3.5 years and with whom he has developed strong emotional bond, and thereafter to put him in totally strange and new environment with the applicant-mother, cannot be considered to be in welfare of the child.”
The Court noted that “the child cannot be treated as a property or a commodity. It is the duty of both the parties to see well-being of the minor child and it is also their duty to see that minor child does not lose contact of her non-custodial parent.”
The decision of the Court:
In light of the foregoing discussion, the Court upheld the Family Court’s order refusing to grant custody to the mother, with no order as to costs, and also dismissed the connected civil application.
Case Title: A vs. B
Case No.: R/First Appeal No. 2780 of 2025
Coram: Hon’ble Ms. Justice Sangeeta K. Vishen, Hon’ble Ms. Justice Nisha M. Thakore
Advocate for the Appellant: Advs. Maharshi S. Joshi, Sudhanshu A. Jha
Advocate for the Respondent: Adv. Bhunesh C. Rupera
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