“The minor girl child should be given in custody of mother unless it is established that she has adverse interest or incapacity to secure welfare of minor,” the Court held while setting aside the District Judge’s order denying interim custody to the child’s mother. The Aurangabad Bench of the Bombay High Court has ruled that upon the death of a minor’s father, the mother assumes the status of natural guardian under law, and interim custody cannot be refused to her unless there is material to establish that such guardianship would jeopardise the welfare of the child.
The petitioner had married Vitthal Shinde in 2018. The couple later obtained a divorce by mutual consent in July 2024, with custody of the child remaining with the father, based on an undertaking by the paternal grandmother to care for the child. Following the father’s death in January 2025, the child continued to reside with her paternal grandparents, who applied to be declared her guardians. The petitioner simultaneously sought custody but was denied interim relief by the District Judge.
The High Court invoked the statutory scheme under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which provides that in the case of an unmarried girl, the father, and after him, the mother, is the natural guardian. The Court stated, “Sub-clause (a) of Section 6 clearly stipulates that in case of an unmarried girl, the father and after him, the mother is natural guardian of minor… legally speaking, the minor girl child should be given in custody of mother unless it is established that she has adverse interest or incapacity to secure welfare of minor.”
The Court emphasised that while the child had remained in the care of her grandparents for over four years, this alone could not deprive the natural guardian of her legal right to custody. It stated, “Merely because grandparents or other relatives had nurtured the child for some period, the natural guardian cannot be denied right of custody of child unless it is shown that welfare of minor would be jeopardize.”
The Court rejected the respondent’s arguments that transferring custody would harm the child’s mental and physical health, noting that the mother is now self-sufficient and engaged in business, capable of supporting and educating her daughter. It observed that educational opportunities were better at the mother’s place of residence in Nanded compared to the rural environment in which the grandparents resided.
While allowing the petition, the Court took note of the emotional bond between the child and her grandparents and directed the mother to file an undertaking before the District Judge ensuring regular access and stated, “Petitioner shall file an undertaking before learned District Judge that respondents would not be prevented access to child on Saturdays or/and Sundays any time from 10.00 am to 06.00 pm and permit them to take away the child, if they desire.”
The Court also permitted the grandparents to seek temporary custody during vacations and festivals, to be determined by the District Judge on application.
A request for a stay of the order was declined by the High Court.
Case Title: A Vs. B and Anr.
Case No.: Writ Petition No. 6529 Of 2025
Coram: Justice S. G. Chapalgaonkar
Advocate for Petitioner: Adv. S.R. Bagal
Advocate for Respondent: Adv. U.B. Bilolikar
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