In FIRST APPEAL NO.1272 OF 2022-BOM HC- Mother is supposed to have custody of child who has not completed age of 5 years u/s 6 (a) of Hindu Minority & Guardianship Act: Bombay HC grants toddler’s custody to his mother Justice S.G.Dige [05-07-2022]

Read Order: Ravindra S/o Prakash Kharat v. Kalpana W/o Ravindra Kharat

Tulip Kanth

Aurangabad, July 7, 2022: A mother has won a custody battle pertaining to her two-and-a-half-yr-old son as the Aurangabad Bench of the Bombay High Court granted the boy’s custody to her by relying on Section 6 (a) of the Hindu Minority and Guardianship Act, 1956 which provides that the mother is supposed to have the custody of the child who has not completed the age of 5 years.

Observing that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor, the Bench of Justice S.G.Dige said, “In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor’s interest. What would be in the welfare of the minor is to be judged in all attending circumstances.”

The facts emanating from this appeal were that the respondent-mother and the appellant-father got married and had two sons namely Kartik and Atharv. Kartik is 2 and 1/2 years old. When the marital relations between them were strained and litigations took place, the mother filed the application under section 25 of the Guardians and Wards Act, 1890 claiming permanent custody of her minor son Kartik, who was in custody of appellant. This appeal filed by the father was directed against the order passed by the District Judge-6, Aurangabad directing that the permanent custody of the minor child Kartik shall be given to his mother (respondent).

Considering that the age of the minor Kartik is 2 and 1/2 years old and  he requires love, affection and proper care which is normally expected from the mother, the Bench highlighted the settled law that in respect of a child of tender age, the mother is more suitable to have custody. It was also opined by Justice Dige that as the appellant is working as a teacher, he may not remain with Kartik for the whole day. Though it was pointed out that the appellant’s parents and other family members are there to look after Kartik, but other family members cannot take the place of mother or father, added the Bench.

The fact that the mother is staying with her parents, has no job, does housework and she can look after the welfare of Kartik, were also considered by the Bench. Moreover, there are other family members in their family to look after Kartik. Younger brother of Kartik is in custody of the respondent, Kartik can get company of his younger brother Atharv, noticed the High Court.

Stating that Section 25 of the Guardians and Wards Act does not state about giving permanent custody, but considering section 6 of the Hindu Minority and Guardianship Act, the Bench remarked that  the custody of minor Kartik shall be with respondent till he attains five years of age. Hence, partly allowing the appeal, the High Court directed that  custody of Kartik shall be given to the respondent till he attains five years of age and the appellant would be entitled to file appropriate proceedings after completing five years age of Kartik.