The Bombay High Court (Aurangabad Bench) set aside a lower court’s decision granting custody of a minor to the father. Justice Shailesh P. Brahme quashed the order passed by the District Judge, Nilanga, on December 18, 2023.
The parties, governed by Muslim personal law, were estranged since 2020. The minor child born in 2015, had been residing with the mother at Bidar. The father had approached the District Court under Section 7 of the Guardians and Wards Act, 1890, seeking custody. The trial court, while recognizing the father as the natural guardian after the child turned seven, had granted him custody. This was challenged by the mother in the High Court.
Justice Brahme, after an in-camera interaction with the minor, noted that the child was emotionally attached to the mother and clearly unwilling to reside with the father. The Court emphasized that, though personal law principles grant custody to the father after the age of seven, those must give way to the overarching principle of the child’s welfare under Section 17 of the Guardians and Wards Act.
The Court found inconsistencies in the mother’s evidence regarding the child’s schooling and her business records but held that these lapses did not outweigh the child’s expressed preference and emotional comfort with the mother. On the other hand, the father failed to establish sufficient financial stability or show that his home environment was more conducive to the child’s upbringing. The lack of a female member in the father’s household was also considered a relevant factor.
Despite the mother’s past non-compliance with interim custody and visitation orders an issue that led to the filing of a contempt petition, the Court held that her conduct was not sufficient to deprive her of the child’s custody. It placed reliance on the Supreme Court’s decisions in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 and Neethu v. Rajesh Kumar, MANU/SC/0920/2025, reiterating that the child’s well-being and psychological stability are paramount in custody matters.
Accordingly, the High Court allowed the appeal, granted permanent custody to the mother, and quashed the lower court’s order. However, the father was granted structured visitation rights, including seven-day custody during long vacations and monthly meetings, to be facilitated under official supervision in Bidar. The pending contempt petition will be decided separately.
Appearances:Â
Advocate for Appellant: Mr. Mahesh P.Kale
Advocate for the Respondent : Mrs.Madhaveshwari Mhase i/by Lex Aquila
