[Cites 15, Cited by 0]
Madhya Pradesh High Court
Smt. Phool Bai vs Kushal Kushwah on 18 February, 2026
Author: Anil Verma
Bench: Anand Pathak, Anil Verma
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 18th OF FEBRUARY, 2026
FIRST APPEAL No. 1949 of 2025
SMT. PHOOL BAI
Versus
KUSHAL KUSHWAH
Appearance:
Shri Nitin Goyal, Advocate for appellant.
Shri S. S. Rajput, Advocate for respondent.
ORDER
Per: Justice Anil Verma
Today, both the parties appeared before this Court in-person.
2. Minor child - Ayush has been brought before this Court by
appellant/Smt. Phool Bai. Ayush submits that for so many years he is
continuously living with her maternal grandmother and he is happy with her
and in future he is willing to live with her maternal grand-mother only and
he has categorically stated that he is not ready to live with his father.
3.Per contra, respondent - Kushal Kushwah stated that being biological
father of minor child - Ayush, he is also his natural guardian, mother of
minor child has been expired and he is also financially more capable than
appellant. Therefore, he deserves for custody of minor child for his better
future.
4. Both the parties heard finally.
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5. Appellant has preferred this first appeal under Section 19 of the
Family Courts Act, 1984( in short ' the Act of 1984') challenging the
impugned order dated 17.09.2025 passed in MJC GW 10/2022 by Principal
Judge, Family Court, Guna, whereby an application under Section 7 of
Guardians and Wards Act, 1890 ( in short ' the act of 1890') filed by
appellant seeking custody of minor child Ayush has been dismissed and
appellant was directed to hand over the custody of minor child to his
father/respondent Kushal Kushwah.
6. Necessary facts for disposal of present appeal in short are that
appellant/petitioner preferred a petition under Section 7 of the Act of 1890
seeking custody of minor child Ayush aged about 2 years(now aged about 6
years), with submission that marriage of respondent was solemnized with
Janki bai on 07.05.2014 who happens to be the daughter of appellant as per
hindu rituals and rights and due to their wedlock, minor child Ayush was
born on 19.06.2020. Appellant/petitioner is maternal grandmother of minor
child. Janki Bai has been expired and thereafter minor child Ayush is living
with Appellant Phoolbai and her family members. Earlier respondent has
filed a petition(MJCGW 42/2021) for seeking custody of minor child before
Family Court, Indore and vide interim order dated 25.03.2023, custody of
minor child has been granted to the petitioner/appellant.
7 . Per contra, learned counsel for respondent denied all these
allegations and submitted in his statement before the trial Court that appellant
and her family members took his wife Janki Bai on a pretext to attend
marriage, but thereafter they refused to send back the Janki Bai. Respondent
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filed a petition under Section 9 of the Hindu Marriage Act for restoration of
conjugal rights before Family Court, Ujjain. But during the pendency of said
petition Janki Bai has been expired in her parental home and intimation
regarding her death was never given to the respondent and even the appellant
demanded money for handing over the custody of minor child and also
misbehaved with him. He made a written complaint against the appellant and
her family members before Police authorities, but minor child was kept in
Bal Kalyan Samiti, Ujjain. Appellant and her family members having
criminal antecedents, therefore, future of minor child is not safe with
appellant.
8. After considering pleadings of both the parties, Family Court
framed certain issues and after appreciating the evidence available on record,
learned trial Court by impugned order dismissed the petition filed by
appellant with a direction to the appellant to hand over the custody of minor
child to the respondent. Being aggrieved by the aforesaid, appellant has
preferred this appeal.
9. Learned counsel for appellant has contended that trial Court has
committed error in dismissing her petition. It is further submitted that after
birth of minor child, respondent did not turn up to take care of juvenile and
further not shown any interest in taking the responsibility of juvenile for his
future life which is material aspect in the matter. Appellant has executed a
will in favour of juvenile and also got prepared material in this matter.
Family of the appellant is having sufficient financial means to enjoy future
life of minor child peacefully and without any hurdle, but respondent is a
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Labour person and engaged in repairing work of furniture. Since last so
many years, the minor child is living with her maternal grandmother and now
he is not willing to live with respondent, therefore, impugned order be set
aside and custody of minor child be granted to the appellant.
10. Per contra, learned counsel for respondent opposes the prayer and
prays for its rejection by supporting the impugned order passed by trial
Court.
11. Counsel for respondent relied upon the judgment of this Court in
the case of Anand kumar & Another Vs. Lakhan Jatav , order dated
16.11.2022 passed in FA No.2526 of 2018 .
12. Heard both the parties at length and perused the entire record with
due care.
13. The main controversy in the present matter is whether the
respondent is entitled to custody of minor child or not?
14. While approaching the aforesaid dispute in question, the relevant
provisions under Hindu Minority and Guardianship Act, 1956 (in short "the
Act of 1956") are also to be taken into consideration. As per Section 2 of the
Act of 1956, the provisions of this Act shall be in addition to, and not, save
as expressly provided, in derogation of, the Act of 1890. Section 6 of the Act
of 1956 speaks about the natural guardian of a Hindu minor child as under:-
"6. Natural guardians of a Hindu minor. ----The natural
guardian of a Hindu minor, in respect of the minor's
person as well as in respect of the minor's property
(excluding his or her undivided interest in joint family
property), are ---
(a) in the case of a boy or an unmarried girl --- the
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father, and after him, the mother: provided that the
custody of a minor who has not completed the age of
five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate
unmarried girl -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
natural guardian 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
by becoming a hermit (vanaprastha) or an ascetic (yati
or sanyasi).
15. In juxtaposition, if the provisions of the Act of 1956 and Act of
1890 are seen, it appears that the welfare of minor child is paramount
consideration while considering his custody in appointment or declaration of
a person as guardian of Hindu minor by a Court.
16. Section 13 of the Act of 1956 reads as under:-
"13. Welfare of minor to be paramount consideration .-
(1) In the appointment or declaration of any person as
guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by
virtue of the provisions of this Act or of any law
relating to guardianship in marriage among Hindus, if
the court is of opinion that his or her guardianship will
not be for the welfare of the minor."
17. The aforesaid aspect has been considered time and again in catena
of decisions by various High Courts as well as the Hon'ble Supreme Court. It
is appropriate to reiterate the same in the matter of Tejaswini Gaud (supra)
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in which it was observed as under:-
"26. The court while deciding the child custody cases is
not bound by the mere legal right of the parent or
guardian. Though the provisions of the special statutes
govern the rights of the parents or guardians, but the
welfare of the minor is the supreme consideration in
cases concerning custody of the minor child. The
paramount consideration for the court ought to be child
interest and welfare of the child.
27. After referring to number of judgments and
observing that the paramount while dealing with child
custody cases, consideration should be the welfare of
the child and due weight should be given to child's
ordinary comfort, contentment, health, Lahari
Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97
education, intellectual development and favourable
surroundings, in Nil Ratan Kundu, it was held as
under:-
"49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002
Raj 148 the High Court observed that it is true that the
father is a natural guardian of a minor child and
therefore has a preferential right to claim the custody of
his son, but in matters concerning the custody of a
minor child, the paramount consideration is the welfare
of the minor and not the legal right of a particular party.
Section 6 of the 1956 Act cannot supersede the
dominant consideration as to what is conducive to the
welfare of the minor child. It was also observed that
keeping in mind the welfare of the child as the sole
consideration, it would be proper to find out the wishes
of the child as to with whom he or she wants to live.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram,
AIR 2003 Mad 315 the Court held that custody cases
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cannot be decided on documents, oral evidence or
prededents without reference to "human touch". The
human touch is the primary one for the welfare of the
minor since the other materials may be created either by
the parties themselves or on the advice of counsel to
suit their convenience.
51. In Kamla Devi v. State of H.P. AIR 1987 HP 34 the
Court observed:
"13..... the Court while deciding child custody cases in
its inherent and general jurisdiction is not bound by the
mere legal right of the parent or guardian. Though the
provisions of the special statutes which govern the
rights of the parents or guardians may be taken into
consideration, there is nothing which can stand in the
way of the Court exercising its parens patriae
jurisdiction arising in such cases giving due weight to
the circumstances such as a child's ordinary comfort,
contentment, intellectual, moral and physical
development, his health, education and general
maintenance and the favourable surroundings. These
cases have to be decided ultimately on the Court's view
of the best interests of the child whose welfare requires
that he be in custody of one parent or the other."
52. In our judgment, the law relating to custody of a
child is fairly well settled and it is this: in deciding a
difficult and complex question as to the custody of a
minor, a court of law should keep in mind the relevant
statutes and the rights flowing therefrom. But such
cases cannot be decided solely by interpreting legal
provisions. It is a human problem and is required to be
solved with human touch. A court while dealing with
custody cases, is neither bound by statutes nor by strict
rules of evidence or procedure nor by precedents. In
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selecting proper guardian of a minor, the paramount
consideration should be the welfare and well-being of
the child. In selecting a guardian, the court is exercising
parens patriae jurisdiction and is expected, nay bound,
to give due weight to a child's ordinary comfort,
contentment, health, education, intellectual
development and favourable surroundings. But over and
above physical comforts, moral and ethical values
cannot be ignored. They are equally, or we may say,
even more important, essential and indispensable
considerations. If the minor is old enough to form an
intelligent preference or judgment, the court must
consider such preference as well, though the final
decision should rest with the court as to what is
conducive to the welfare of the minor."
28. Reliance was placed upon Gaurav Nagpal, where
the Supreme Court held as under:-
"32. In McGrath, (1893) 1 Ch 143, Lindley, L.J.
observed: (Ch p.148) The dominant matter for the
consideration of the court is the welfare of the child.
But the welfare of the child is not to be measured by
money only nor merely physical comfort. The word
'welfare' must be taken in its widest sense. The moral or
religious welfare of the child must be considered as
well as its physical well-being. Nor can the tie of
affection be disregarded." (emphasis supplied)...........
50. When the court is confronted with conflicting
demands made by the parents, each time it has to justify
the demands. The court has not only to look at the issue
on legalistic basis, in such matters human angles are
relevant for deciding those issues. The court then does
not give emphasis Gaurav Nagpal v. Sumedha Nagpal
(2009) 1 SCC 42 on what the parties say, it has to
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exercise a jurisdiction which is aimed at the welfare of
the minor. As observed recently in Mausami Moitra
Ganguli case (2008) 7 SCC 673, the court has to give
due weightage to the child's ordinary contentment,
health, education, intellectual development and
favourable surroundings but over and above physical
comforts, the moral and ethical values have also to be
noted. They are equal if not more important than the
others.
51. The word "welfare" used in Section 13 of the Act
has to be construed literally and must be taken in its
widest sense. The moral and ethical welfare of the child
must also weigh with the court as well as its physical
well-being. Though the provisions of the special
statutes which govern the rights of the parents or
guardians may be taken into consideration, there is
nothing which can stand in the way of the court
exercising its parens patriae jurisdiction arising in such
cases.
28. Contending that however legitimate the claims of
the parties are, they are subject to the interest and
welfare of the child, in Rosy Jacob, this Court has
observed that:-
"7..... the principle on which the court should decide the
fitness of the guardian mainly depends on two factors:
(i) the father's fitness or otherwise to be the guardian,
and (ii) the interests of the minors......."
18. Having considered all the evidence available on record and rival
contentions made by both the parties, this Court is of the considered opinion
that however, respondent is the biological father of child and is natural
guardian and mother of minor child has been died, but it is to be noted that
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respondent after the death of his wife (mother of minor child Ayush) living
separately and even the birth of his first and sole child, he did not turn to see
and take care of juvenile child. Further, he never shown any interest in the
responsibility of minor child for his future life. Since birth minor child
Ayush is living with her maternal grandmother and her family members.
Respondent did not send any money for maintenance of minor child.
Therefore, it is apparent that respondent is not interested in welfare of minor
child and thinking only about his future and property.
19. So far as financial condition of respondent is concerned, although,
respondent submits that he is having the furniture shop and independent
house at Ujjain, but he did not file any relevant documents regarding the
aforesaid immovable property to establish his financial condition. Although,
appellant Phool Bai is 63 years old lady and she is living with her husband
Ramesh Chand and other family members. From perusal of Ex.P-3 to Ex.P-
131, it is proved that appellant and her family members bear all the expenses
of treatment of her daughter Janki and from perusal of document Ex.P-134 to
Ex.P-137, it is also proved that the appellant and her family members have
made all the sufficient arrangements for education and day to day care of
minor child.
20. Apart from above, appellant Phool Bai in paragraph 8 of her
deposition categorically stated that she has executed a will (Ex.P-132) in
favour of minor child Ayush and also deposited Rs.2 Lakhs in FD at UCO
Bank, Guna in favour of Ayush. From perusal of aforesaid, it is proved that
appellant has sufficient financial means to take care and for welfare of minor
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child.
21. Although, it is settled position of law that welfare of minor is
important and legal guardianship is not material. But, in the instant case,
although respondent is the biological father of minor child, but he has
neglected his child since his birth and minor child has categorically
expressed his wish to live with her maternal grandmother. Therefore, on the
basis of conduct of both the parties, this Court is convinced that interest of
minor child would be based served if custody of minor child is given to
appellant.
22. In the cumulative consideration and findings given, this Court is of
the considered opinion that the trial Court has ignored all these aspects,
which are necessary for welfare of the minor child. Hence, the impugned
order passed by the trial Court suffers from illegality and perversity and
deserves to be dismissed.
23. In the result, this petition is allowed and the impugned order dated
17.09.2025 passed by Principal Judge, Family Court, Guna in MJC GW
10/2022, whereby an application under Section 7 of the Act, 1890 filed by
appellant seeking custody of minor child Ayush has been dismissed is hereby
set-aside and it is directed that the appellant/Maternal Grandmother is
entitled for the custody of the minor child Ayush.
24. However, before parting with the matter, it is made clear that the
respondent being real father of the minor child, if he wishes to meet him, he
is at liberty to avail the visitation right to interact with the minor child once
in every month and to take note of overall well being of the minor as per the
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cooperation between the rival parties, on a date and any suitable time
mutually fixed by them and the appellant shall not cause any obstruction in
meeting between the child and the respondent/father.
25. With the aforesaid, the appeal stands allowed and disposed of with
no order as to costs.
(ANAND PATHAK) (ANIL VERMA)
JUDGE JUDGE
R
