Mother Is Natural Guardian Of Girl Aged Below 5 Yrs, Disputed Separation Deed Giving Custody To Father No Bar: Gujarat High Court

The Gujarat High Court has held that under the Hindu Minority and Guardianship Act that the mother is the natural guardian of a girl aged below five years, and that the father cannot take care of such a girl child in a way the mother can.

It further ruled that father seeking custody based on disputed separation deed claiming mother voluntarily agreed to hand over custody would not be a bar to the maintainability of the mother's habeas corpus petition. The court was hearing a habeas corpus petition filed by a woman seeking custody of her four-year-old daughter, alleging that her estranged husband had unlawfully retained custody after fraudulently obtaining her signature on a separation deed.

A Division Bench of Justice N.S. Sanjay Gowda and Justice D.M. Vyas held:

“It cannot be in dispute that, as per the proviso to Section 6 (a) of Hindu Minority & Guardianship Act, 1956, the natural guardian of a girl child who is just about 4 years and one month old, would be the mother. The law, basically, recognizes that a girl child who is yet to complete 5 years of age can effectively and practically be taken care of only by the mother and not by the father. It also stands to common sense that a father would not be able to take care of a child below 5 years in the manner that a mother can.”

The father had argued that separation deed–as per which he claimed that the mother had voluntarily agreed to hand over custody of daughter to him, cannot be doubted and as a consequence the voluntary handing over the girl to him cannot also be doubted because of the affidavit  led by the witnesses to the separation deed.

The court however said that while it was stated in the affidavit by the witnesses that the document was executed by the parties however it was only stated that the husband "had volunteered to take the custody" of the minor girl and had undertaken to bear all expenses of his daughter.

The court said that it was not forthcoming from this affidavit whether mother had agreed to this offer or even whether she was asked about her willingness to give up custody of daughter in favour of the husband.

"In the absence of the consent of Kinjal being sought and her consent having been obtained for handing over the custody...the affidavit cannot be accepted as proof of consent of Kinjal for voluntarily handing over custody..." the court said. 

The petitioner wife argued that the separation deed dated July 11, 2025 was obtained by force and fraud on the false promise that custody would be returned to the mother. He contended that the mother had been the child's primary caregiver since May 2024 and the father had no lawful right to retain custody based on a disputed document.

On the other hand, the respondent husband argued that custody had been voluntarily handed over by the mother as mentioned in the separation deed. Since the custody was consensual, it could not be termed illegal, and therefore a writ of habeas corpus was not maintainable.

The Court noted that the separation deed relied upon by the husband to claim custody did not “inspire confidence” as there were discrepancies in the document's font size and line spacing which suggested possible insertion or alteration of pages. Given this, the Court prima facie concluded that the “document is suspicious and the possibility of the first page having been inserted or substituted cannot be ruled out.”

Further, the Court found that the letter relied on by the husband where the woman is said to have admitted her divorce and separation deed was also suspect. The letter admitting the divorce was dated July 10, 2025, when the separation deed itself was executed only on July 11, 2025.

The Bench noted that even as the husband claimed the validity of the separation deed, he had filed a petition for dissolution of marriage and divorce by mutual consent under Section 13B of the Hindu Marriage Act, seeking a divorce decree and transfer of custody to him. The Court found that this contradicted his claim that he already had lawful custody through the separation deed and the marriage stood dissolved.

The Court rejected the objections to the maintainability of the habeas petition, reiterating that writ jurisdiction can be exercised in custody matters involving minors. The paramount consideration in such matters remains the welfare and best interests of the child.

Expanding on this, the Court noted “for a period of almost 14 months, when she was extremely young i.e. about 3 years, she has spent 1 year and 2 months with her mother and a bond would have been created between the mother and child. Therefore, to separate the mother from her girl child, who is just about 4 years old, and who had been brought up only by the mother for about 1 year 2 months, would not be in the interest of the child and would cause trauma to the child. By transferring the custody to the father, we would be basically forcing an entirely new and strange ecosystem on the child and she would be forced to face people who are basically strangers to her she had not even seen as she has been living with her mother in May 2024 when she was only about 3 years old.”

Accordingly, the High Court allowed the mother's habeas corpus petition and directed that the mother shall retain custody of the minor daughter.

It granted visitation rights to the father on weekends, while clarifying that he was free to approach the Family Court to seek the appropriate orders regarding custody.

Case Title: Kinjal v State of Gujarat & Anr.

Appearance: Mr. Dharrm Raval for the applicant. Mr. Hari Brahmbhat for the Respondent husband and APP Mr. Chintan Dave for the State.

Case Number: R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 471 of 2026

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