Daughter Living With Father At Time Of Separation Does Not Deprive Mother Of Right To Custody As Natural Guardian: Allahabad High Court

Observing that the mother is the natural guardian of a 4-year-old daughter, the Allahabad High Court has held that even if the company of the minor daughter was given to the husband at the time of separation, it would not deprive the mother of her right to custody of the daughter.The bench of Justice Ashwani Kumar Mishra and Justice Donadi Ramesh held “Merely because the mother has been deprived of the company of her daughter at the time when the couple separated and fact that the daughter had continued to be in company of the father for sometime itself would not be sufficient circumstance to deny custody of the minor daughter to the mother who is her natural guardian. Various physical, emotional and psychological needs of the four year old daughter would be better protected in the care and custody of her mother.”The father-appellant approached the High Court against the order of the Family Court granting ex-parte custody of the 4-year-old daughter to the mother-respondent. It was pleaded that the father was taking care of the daughter and there was no need to give her custody to the mother. The Court observed that the parties were married in 2010 and have a son and a daughter. The husband had filed a divorce petition wherein the wife filed for custody of the daughter. It was observed that the son was studying in a boarding school, and the father was paying expenses while the daughter was living with the father. “Admittedly, the mother is the natural guardian of minor child below 5 years of age and ordinarily, she would be allowed to have the custody of her minor child, unless for specific reasons, a different course is warranted. It is otherwise settled that in the matter of child custody, primary concern is the welfare and well being of the child.”The Court observed that the argument that removing the daughter from the care of the father would be traumatic for her was unimpressive. It held that even though the transfer of the custody “may cause psychological stress for the child”, however, the interest of the parties had to be balanced. It was observed that the mother was a graduate, living alone, and no allegations of harm happening to the daughter by the mother were made. Holding that the mother can meet various needs of the daughter, the Court upheld the order of the Family Court. Noting that both parents were given visitation rights, the Court dismissed the appeal by the father. Case Title: Amit Dhama v. Smt Pooja And 2 Others 2025 LiveLaw (AB) 13 [FIRST APPEAL No. - 922 of 2024]Case citation: 2025 LiveLaw (AB) 13Click Here To Read/Download Order

Daughter Living With Father At Time Of Separation Does Not Deprive Mother Of Right To Custody As Natural Guardian: Allahabad High Court

Upasna Agrawal

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