The Delhi High Court has observed that a mother, being the natural guardian of her children, has a superior claim to their custody over grandparents unless she is found to be unfit, incapable or negligent in taking care of them.

A Division Bench comprising Justice Subramonium Prasad and Justice Renu Bhatnagar observed that children cannot be deprived of their mother and that their wishes must be considered while deciding custody disputes, particularly when they are old enough to think independently.

“The respondent/mother cannot be deprived of the children and the children cannot be deprived of their mother,” the Court observed.

The Bench made the observations while dismissing an appeal filed by a paternal grandfather challenging a Family Court order that declined his request for custody of his grandchildren.

The grandfather had approached the Family Court under the Guardians and Wards Act, 1890, seeking custody of his two grandchildren after his son passed away in December 2016. The children had continued to live with their mother.

He contended that the mother, who was a working woman, was unable to provide the children with proper care and a suitable environment. He argued that the grandparents could provide them with a better and more congenial upbringing.

The Court, however, noted that the children had expressed their desire to continue living with their mother when the Family Court interacted with them.

It also noted that the children were around 17 and 14 years old when the Family Court passed the impugned order, and the granddaughter had attained majority by the time the Court decided the appeal.

The Court observed that, given their ages, the children were capable of rational thinking and there was no material to suggest that they had been tutored into expressing their preference.

It also noted that there was nothing on record to indicate that the mother was not bringing up the children properly. The mother was financially independent, employed as an Income-Tax Officer and had her own accommodation.

The Bench further clarified that allegations concerning whether the mother had subjected the appellant's son to cruelty were not matters to be examined in custody proceedings under the Guardians and Wards Act.

It held that the Family Court's decision to deny custody to the grandfather was well-reasoned and did not warrant interference.

On visitation, the Court observed that the granddaughter, having attained majority, was free to visit her grandparents if she wished to do so. It added that the Court could neither force a grandchild to meet the grandparents nor restrain her from doing so.

The Court, however, left it open to the grandfather to move an appropriate application before the Family Court seeking visitation rights.

“However, it is always open to the appellant herein to move appropriate application before the Family Court for the purposes of visitation rights, which shall be considered by the Family Court on its own merits after eliciting the willingness of the grandchildren,” the Court said.