The High Court of Gujarat on December 9, 2025, declined to interfere with a Family Court order that allowed a minor child to continue living with his father, while granting the mother fixed visitation rights. The court said the child’s welfare was being adequately taken care of and found no legal or factual reason to disturb the existing custody arrangement.
The appeal was heard by a division bench of Justice Sangeeta K. Vishen and Justice Nisha M. Thakore, who delivered an oral judgment dismissing the mother’s challenge.
Background of the Case
The parties married in August 2015 and had a son in May 2021. Due to marital disputes, they entered into a customary divorce in October 2022. Under the divorce deed, the mother agreed that the child’s permanent custody would remain with the father, while she retained limited visitation rights.
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More than a year later, the mother approached the Family Court seeking permanent custody under the Guardian and Wards Act, arguing that as the natural guardian of a child below five years, custody should ordinarily be with her. Initially, an interim order briefly handed custody to the mother, but after a full trial, the Family Court rejected her claim and restored custody to the father, granting her structured visitation and weekly video calls.
Aggrieved by this final order, the mother filed a first appeal before the High Court.
Arguments Before the High Court
Counsel for the mother contended that the divorce agreement was signed under pressure and was legally void. It was argued that the Family Court failed to consider that the mother had a higher educational qualification, a flexible work profile, and a more spacious residence. According to her, these factors would better serve the child’s welfare.
The father’s counsel countered that the mother had consciously given up custody at the time of divorce and had never challenged that deed before a competent court. He stressed that the child had been living with the father since he was about 16 months old and was now settled, emotionally secure, and doing well in school.
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Court’s Observations
After examining the record and interacting with the child during the proceedings, the bench focused on one principle: welfare of the child comes first.
“The use of the word ‘ordinarily’ in the law does not mean custody must always be with the mother,” the bench observed, adding that each case turns on its own facts.
The judges noted that the child was nearly five years old, enrolled in a reputed CBSE-affiliated school near the father’s home, and performing well academically and in extracurricular activities.
The court also recorded that the father had a stable income and family support nearby, and that there was no evidence to show the child’s physical, emotional, or educational needs were being neglected. On the mother’s claim of higher income, the bench pointed out that her bank statements did not show a steady monthly earning pattern.
Significantly, the court rejected the allegation of coercion in signing the divorce deed.
“If the agreement was truly executed under duress, the first step would have been to challenge it,” the bench noted, observing that no such challenge had been made even after considerable time.
Final Decision
Upholding the Family Court’s reasoning, the High Court concluded that removing the child from the father’s custody at this stage would not be in his best interest. The appeal was dismissed.
The court confirmed that the mother would continue to have visitation with her son on the first and third Sundays of every month, weekly video or voice calls, and time with the child on his birthday, as already directed by the Family Court.
No costs were imposed, and the connected stay application was also dismissed.
Case Title: Mother (Appellant) vs Father (Respondent)
Case Number: R/First Appeal No. 2780 of 2025
Date of Judgment: December 9, 2025
