The Allahabad High Court has held that a child of tender age who has been kept away from his mother cannot give an intelligent preference on custody, and his wish to stay with the relatives who raised him cannot outweigh the claim of the mother as his natural guardian.

It held that merely because the grandmother had looked after the child, she could not be said to have a better claim to his custody than the mother.

The bench of Justice Saral Srivastava and Justice Siddharth Nandan held,

“the welfare of the minor child who is of a tender age of six years, having been deprived of any access to his mother, cannot be decided on a statement being recorded, as also the possibility of tutoring etc. cannot be ruled out; apart from the fact that the child is of a tender age of six years, he cannot give an intelligent preference or to make a judgment towards his emotional and physical welfare.”

Appellant's husband died in 2020, when their son was eight months old. She alleged that her signatures were taken on a blank paper on the pretext of an insurance claim and were used to prepare a forged agreement leaving the child with his grandmother, after which she was not allowed to meet her son.

The Family Court, Agra dismissed her suit for custody under Sections 7 and 25 of the Guardians and Wards Act, 1890, following which she filed a first appeal before the High Court. The child's statement had been recorded during the trial when he was about six years old.

The grandmother contended that the mother had deserted the child, who was now settled with her. She relied on the child's statement, an alleged compromise by which the mother had given up her claim, and a Will by the father vesting guardianship in her.

Relying on Githa Hariharan (MS) and Another Vs. Reserve Bank of India and Another, the Court held that the mother was the natural guardian as the father was no longer alive. It found the compromise and the Will to be of little relevance since the welfare of the child was the paramount consideration.

Noting that the mother had approached the court without delay after losing custody, the Court observed,

“The 'nature' is said to have given a special coherence between a mother and a child and when the two are separated, especially when the child is of a tender age and restrained to meet his/her mother, it is not short of a deprivation of a natural right, to know his own parents.”

The Court held that the child's wish to stay with his grandmother had to be seen in light of his having been denied access to his mother. Relying on Ms. Nasrin Begam and Another Vs. Prof. Mohd. Sajjad and another, it noted that courts have declined to interview children in such disputes as they lack the capacity to give an intelligent preference.

Finding the financial position of the parties to be balanced, the Court held that the mother could not be denied custody only on the basis of her income or financial dependence.

Accordingly, the Court set aside the Family Court's judgment and granted custody of the child to the mother forthwith, with visitation rights to the grandmother. The appeal was allowed.