Mother Who Handed Over Son To Father's Custody During Divorce Can't Claim 'Superior' Right Later: Gujarat High Court
The Gujarat High Court upheld a family court order which had rejected a mother's claim seeking custody over the minor son, ruling that she had agreed and signed the divorce agreement handing over custody to the father "consciously" and she can't now claim "superior custody" over the child. The appellant mother had challenged a family court order which while rejecting her custody claim had...
The Gujarat High Court upheld a family court order which had rejected a mother's claim seeking custody over the minor son, ruling that she had agreed and signed the divorce agreement handing over custody to the father "consciously" and she can't now claim "superior custody" over the child.
The appellant mother had challenged a family court order which while rejecting her custody claim had granted her exclusive visitation rights to meet her minor son on every 1st and 3rd Sunday of each month between 10 a.m to 5 p.m at any public place in Ahmedabad or any other place where the child is comfortable.
She was also permitted to talk to her child through video call/voice call once in a week for 30 minutes as per the convenience of the child.
For context, in October 2022 a customary divorce agreement was executed between the parties (mother and father) wherein one of the conditions was that the custody of the minor son, who is less than five years, is to remain with the father.
A division bench of Justice Sangeeta K Vishen and Justice Nisha M Thakore in its order while referring to the divorce agreement observed:
"the above condition unequivocally provides that the permanent custody of the child shall be with the respondent father. Now before this Court it is sought to be contended that the divorce deed was executed under duress and coercion and is not out of freewill. Decision to hand over the custody was conscious decision taken by the appellant-mother and it cannot be said that it was under force or pressure or coercion. It is difficult to fathom that if the appellant-mother was of the opinion that agreement was a result of a coercion why did she not challenge. The first thing the mother would do, is to challenge it. After almost one year and one month, the appellant-mother preferred the application seeking permanent custody of the child; however, until now the divorce deed is not challenged".
With respect to the mother's contention that the child is under 5 years and so should be with her, the court observed that while it was true that the mother is a natural guardian, however the father is a natural guardian "as well".
It further said that on interacting with the child the court had found that the child was being well taken care of in a proper, decent and satisfactory manner. He has been admitted to a school affiliated with a Central Board near the father's residence and the court did not find any "shortcomings in the grooming or upbringing of the child".
"This Court, is satisfied that though the child is of the tender age of four and half years, possesses all the etiquettes, discipline and courtesies. The child shares a close bond with his father. Moreover, the respondent father is aware about each and every need of the child...In the facts of the case the appellant mother had executed a divorce deed and has handed over the custody of child taking a conscious decision and hence, she cannot claim superior custody right. In the absence of any perversity pointed out by the learned advocate appearing for the appellant-mother, this Court, is of the opinion that the impugned judgment does not warrant any interference so also the appeal".
The appellant's counsel argued in matters of custody of a minor child who is below five years, shall ordinarily be with the mother. It was also argued that the mother's income was higher than the father's and she lived in a flat larger than the husband's apartment.
The father's counsel argued that as per the customary divorce that took place in October 2022 the appellant-mother agreed to not claim custody of the child. When she did not claim custody of the child at the relevant point of time, it would not be proper on her part to turn around and now claim the custody, almost over one year from the date of separation.
The bench noted that the mother left the child when he was 16 months old and substantial time had passed and now the child is four and half years. All this while the child had the company of the father and now he would be completing 5 years soon, it said.
The court observed that the child's school assessment as per his report card was "very good" and the father was regularly paying the school fees. It also rejected the mother's contention that she was earning more than the father, observing that he was earning a decent regular salary while the mother's bank statement for 2025 did not give a satisfying picture as claimed.
It also said that while the father's home was small, it was an independent and a decent apartment the ownership of which rested with the father. It noted that the mother was living in a rented apartment and while that is not construed as a negative factor against the mother, however the father was not required to shell any amount towards rent.
It also said that while the mother contended that she was "coerced and the divorce deed was executed under the duress or pressure", however she has not filed any criminal complaint regarding the alleged coercion or execution of the deed under duress.
Upholding the family court order the high court dismissed the mother's appeal.
Case title: X v/s Y
R/FIRST APPEAL NO. 2780 of 2025