Mumbai: The Aurangabad bench of the Bombay High Court has held that after the father, the mother is the natural guardian of a minor child. The court handed over the custody of a five-year-old girl, who was residing with her paternal grandparents, to her mother.
As per the Hindu Minority and Guardianship Act, the natural guardian of a minor child is first the father and then the mother. Therefore, legally speaking the minor girl child should be given in custody of the mother unless it is established that she has adverse interest or incapacity to secure welfare of the child, Justice SG Chapalgaonkar on July 15.
The HC was hearing a plea filed by the mother challenging the April order of the district court rejecting her application for her daughter’s custody and handing it over to the grandparents.
The couple married in 2018, divorced by mutual consent in July 2024. At the time, the women agreed to give their then one-year-old daughter’s custody to the husband and his parents, as she had no income and was dependent on her parents.
The man Passed away in January, following which his parents filed an application seeking to be appointed as minor’s guardians. The woman opposed the same and sought child’s custody contending that the grandparents are getting old and would not be able to take care of the child. She further claimed that since she is now earning well she would be in a better position to take care of her daughter.
Since the district judge rejected her application, she approached the HC.
The court noted: “When it comes to a girl child aged about five years, the Courts cannot be oblivious of the fact that it is the mother who can be the best person to have custody. The care and support by the natural mother to a child is unparalleled and cannot be replaced by anyone else.”
Merely because the grandparents had nurtured the child for some period, the natural guardian cannot be denied the right of custody of the child unless it is shown that the welfare of the minor would be jeopardized, it added.
Moreover, because the woman left custody of her child with her husband at the time of divorce it cannot be said that she had abandoned the child, the court said. At the relevant time she herself was dependent on her parents and had no source of income and hence deemed fit for the child to be with her father.
While directing to hand over child’s custody to mother, the court has clarified that the grandparents shall be permitted access to the child over the weekends and during holidays.
