Setting aside an order transferring the interim custody of a six-year-old girl to her father, the Court ruled that findings branding a pending criminal case as "false" or "frivolous" before completion of investigation amount to an impermissible prejudging of issues reserved for the criminal justice process and divert custody proceedings from their singular focus—the welfare of the child.

Justice Sanjay Parihar made the observations while allowing an appeal filed by Muskan @ Shagufta Kousar, restoring the interim custody of her six-year-old daughter to her and setting aside the trial court's order, which had transferred custody to the father on the premise that the mother had secured custody by lodging a false criminal case against him.

The parties, belonging to different religions, married according to Hindu rites in 2015 at Arya Samaj Mandir, Jammu, and later solemnised their marriage through Nikah in 2019. They were blessed with a daughter, who is presently about six years old. Matrimonial disputes arose between them in 2023, resulting in multiple civil and criminal proceedings.

The mother asserted that the child had been residing with her until 14 August 2024, when the father allegedly removed the child from her custody. Following registration of an FIR, the child was recovered by the police and produced before the Child Welfare Committee, which restored custody to the mother after interacting with the child.

During the pendency of guardianship proceedings, however, the trial court concluded that the mother had obtained custody by abusing the criminal process and directed that interim custody be handed over to the father, while granting visitation rights to the mother.

Aggrieved, the mother approached the High Court, contending that the trial court had erroneously assumed that the criminal allegations levelled by her against the respondent were false even though the investigation was still pending.

Court's Observations:

After interacting with the minor child in chambers, the High Court observed that custody proceedings under the Guardians and Wards Act are not intended to adjudicate matrimonial disputes or determine the truthfulness of criminal allegations exchanged between the parents. The Court emphasised that the sole consideration in such proceedings is the welfare and best interests of the child.

The Court found that the trial court had fundamentally erred in proceeding on the assumption that the FIR lodged by the mother was false and that she had obtained custody by misrepresentation. It noted that the FIR was still under investigation, while proceedings challenging the FIR were pending before the High Court itself, which had permitted investigation to continue. Justice Parihar observed,

"...Once the allegations are yet to be investigated and have not been adjudicated upon by any competent court, it was not open to the learned trial Court to record even a prima facie finding that the criminal proceedings initiated by the petitioner were frivolous or false and to employ such a finding as the principal reason for altering the custody of the minor child."

The Court further noted that custody had not been restored to the mother merely because an FIR had been registered. Rather, the Child Welfare Committee, after interacting with the child and considering the surrounding circumstances, had independently restored custody to the mother. Ignoring that material circumstance while altering custody was held to be legally unsustainable.

Reiterating the principle that the Court acts as parens patriae while deciding custody disputes, the Bench observed that allegations and counter-allegations between estranged spouses cannot eclipse the paramount consideration of the child's welfare. The Court held that the trial court attached undue significance to the pending criminal proceedings while overlooking whether shifting custody of a six-year-old girl during the pendency of guardianship proceedings would actually advance her welfare.

Referring to the decisions of the Supreme Court in Gaurav Nagpal v. Sumedha Nagpal, Vivek Singh v. Romani Singh, Roxann Sharma v. Arun Sharma, and Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, the Court reiterated that collateral proceedings cannot be used to prejudge criminal allegations that remain under investigation and that custody determinations must remain child-centric.

The Court also took into account its interaction with the six-year-old child, observing that although the wishes of a child of such tender age are not conclusive, interaction assists the Court in assessing the child's emotional comfort, sense of security and overall well-being.

“…..Frequent or abrupt changes in custody, unless dictated by compelling circumstances affecting the child's welfare, are ordinarily discouraged, as they may adversely impact the child's emotional and psychological development”, the court remarked.

Holding that the trial court had committed a jurisdictional error by allowing itself to be influenced by unproven criminal allegations instead of concentrating on the welfare of the child, the Court set aside the impugned order restoring custody to the father.

It directed that interim custody of the minor girl shall remain with the mother, while granting visitation and interim access rights to the father as may be regulated by the trial court. The Court also directed the trial court to endeavour to dispose of the guardianship proceedings within six months, without being influenced by any observations made in the present order.

Case Title: Muskan @ Shagufta Kousar v. Ashu Raja

Citation: 2026 LiveLaw (JKL) 306

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