The Bombay High Court, in a significant judgment, stated that after the father’s death, the mother becomes the natural guardian of the child, even if the child has been living with paternal grandparents for a long time. The Court set aside the order of the District Judge who had denied interim custody to the mother and directed that the child be handed over to her.
Justice S.G. Chapalgaonkar delivered this decision on a petition filed by a woman named Parvati. She had challenged the order of the District Judge that refused her interim custody of her 5½-year-old daughter, Sanvi.
The child’s father, Vitthal Shinde, passed away in January 2025. He had earlier divorced Parvati through mutual consent in 2024 and had retained custody of the child with an undertaking given by the grandmother to take care of the child. After his death, the child continued to live with her paternal grandparents, who filed a petition seeking to be declared the child’s legal guardians. Parvati simultaneously filed a petition for custody of her daughter, which was rejected by the District Judge.
The High Court reversed the district court’s decision, noting that under Section 6 of the Hindu Minority and Guardianship Act, 1956, the mother becomes the natural guardian after the father. The law gives her precedence unless she is proven unfit.
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“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 minor.”
The Court made it clear that the welfare of the minor is the supreme consideration, even if special statutes govern the rights of parents or guardians.
“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.”
The Court also noted that the mother is now engaged in business and has sufficient income to maintain herself and her child. Additionally, she resides in Nanded, which provides better education facilities compared to the rural area where the grandparents live.
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Taking into account the emotional bond between the child and her grandparents, the Court directed that the mother should file an undertaking before the District Judge ensuring that the grandparents are given regular access to the child every Saturday and Sunday from 10:00 AM to 6:00 PM. They may also take the child with them during these times if they wish.
“The child’s growing age would make custody transitions harder. Therefore, unless any adverse fact is recorded against the mother, she should not be denied custody.”
The Court further stated that the grandparents should also be allowed temporary custody of the child during Diwali, Christmas, and summer vacations, as per the time fixed by the District Judge upon their application.
Case Title: Parvati @ Swati v. Vyankat & Anr. [Writ Petition No. 6529 of 2025]