The Aurangabad bench of the Bombay High Court has handed over the custody of a five-year-old girl, living with her paternal grandparents, to her mother, noting that after father, the natural guardian of a minor child is mother.
A bench of Justice S G Chapalgaonkar on Tuesday said 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 the custody of the mother unless it is established that she has adverse interest or incapacity to secure welfare of the child, the high court said.
The order was passed on a plea filed by a 25-year-old woman against an April 2025 order of a district court rejecting her application seeking custody of her five-year-old child.
The woman in her plea said when she got mutually divorced, she had agreed for her daughter, at the time one years old, to be in the custody of her husband and his parents.
However, the man died in January this year after which the paternal grandparents filed an application seeking to be appointed as guardians of the child.
{{/usCountry}}However, the man died in January this year after which the paternal grandparents filed an application seeking to be appointed as guardians of the child.
{{/usCountry}}The woman opposed the same and sought the child's custody, claiming 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.
"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," the HC said.
Merely because grandparents or other relatives had nurtured the child for some period, the natural guardian cannot be denied right of custody of the child unless it is shown that the welfare of the minor would be jeopardised, it added.
The court said just because the woman left the custody of her child with her husband at the time of divorce, it cannot be said that she had abandoned the child.
It added that at the time of divorce, the woman was herself dependent on her parents and had no source of income and hence deemed fit for the child to be with her father. The court ordered for the child to be handed over to the custody of the mother but said the grandparents shall be permitted to visit the child once or twice a week.