Parveen vs Meena Mir & Anr.
- Court
- Delhi High Court
$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18.05.2026
+ MAT.APP.(F.C.) 199/2025, CM APPL. 32716/2025
PARVEEN .....Appellant
Through: Mr. Mahboob Inayati and Mr.
Shoaib Khan, Advs alongwith
the Appellant in person
versus
MEENA MIR & ANR. .....Respondents
Through: Mr. Ajay Mahla and Mr. Vishal
Chhillar, Advs. for R-1.
(through VC)
CORAM:
HON'BLE MR. JUSTICE VIVEK CHAUDHARY
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT
1. The present appeal under Section 19 of the Family Courts Act,
1984 has been preferred by the Appellant/mother assailing the
consolidated Judgment and Decree dated 20.03.2025 passed by the
learned Judge, Family Court, North-West District, Rohini Courts,
Delhi in GP No. 48/2022 (Old GP No. 53/2016) and GP No. 66/2022
(Old GP No. 4/2017), whereby the custody petition preferred by the
Appellant came to be dismissed and Respondent No.1, namely Ms.
Meena Mir, who is the paternal aunt ( Bua ) of the minor children, was
appointed as guardian and granted custody of the minor children
namely Master Ayaan Ali and Baby Aleena. Insofar as Master Ayaan
Ali is concerned, he has since attained majority.
2. The factual backdrop giving rise to the present appeal is that the
Appellant is the biological mother of the above-named children. The
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Appellant’s husband, Late Sh. Juber Ali, expired on 20.07.2016.
Shortly thereafter, on 30.08.2016, the children came to reside with
their paternal side of the family.
3. Initially, the paternal grandmother of the children, namely Ms.
Amna, instituted a guardianship petition being GP No. 53/2016 before
the learned Family Court. Subsequently, the Appellant also instituted
an independent guardianship petition being GP No. 4/2017 seeking
permanent custody of the children. During the pendency of the
proceedings, Ms. Amna expired in February, 2021, whereafter
Respondent No.1/paternal aunt was impleaded and continued the
proceedings.
4. Both petitions were consolidated and came to be decided by the
impugned common Judgment dated 20.03.2025. The learned Family
Court, while passing the impugned Judgment, interacted with both the
minor children. The children expressed their desire to stay with the
Respondent No. 1/Meena Mir and not with their mother. The Family
Court, accordingly, held that change of custody at that stage would not
be in the interest and welfare of the minor children, and disposed of
the matter granting custody to Respondent No. 1/paternal aunt, while
also granting limited visitation rights to the Appellant/mother to meet
th rd th th
the children from 20 to 23 June and 25 to 28 December every
year between 4:00 PM to 6:00 PM at Pacific Mall, NSP, Delhi, along
with video call access every Wednesday and Saturday between 7:00
PM to 8:00 PM. It is noted that during the pendency of the present
appeal, Master Ayaan Ali has attained majority.
5. Assailing the impugned Judgment, learned counsel for the
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Appellant submits that the Appellant is the biological mother of the
children, employed, and financially capable of taking care of them. It
is submitted that the Learned Family Court failed to appreciate the
mandatory bar contained in Section 19(b) of the Guardians and Wards
Act, 1890, which prohibits appointment of a guardian when the
mother is alive and has not been found unfit. It is further submitted
that Respondent No. 1 had wilfully flouted the visitation orders of the
Court, and had even physically assaulted the Appellant on 14.03.2021
during a court-ordered visit, as evidenced by a video on record. It is
contended that the children had never been given a level playing field
to exercise a free and independent choice, having been separated from
their mother since 2016 and allegedly subjected to parental alienation.
6. Per contra , learned counsel appearing for Respondent No.1
submits that the children have continuously resided with Respondent
No.1 for almost a decade. They are well settled in Mumbai socially,
emotionally and academically; and that both children have
consistently expressed their unwillingness to reside with the
Appellant. One of the children namely, Ayaan Ali, has attained
majority.
7. During the pendency of the present appeal, this Court had on
17.05.2026 directed that the minor child Aleena be
produced/connected through Video Conferencing on 18.05.2026.
Accordingly, on 18.05.2026, the child Aleena appeared through Video
Conferencing and was interacted with by this Court.
8. Upon being queried, Baby Aleena stated that she is presently
about 15 years of age and is presently residing in Mumbai with her
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Bua/Respondent No. 1, that she is happy there, and that she is
pursuing her studies. She clearly and unequivocally stated that she
does not wish to live with her mother/Appellant. She further stated
that she would be willing to visit her mother in accordance with the
visitation schedule already provided in the impugned Order dated
20.03.2025 and shall abide by the same.
9. Significantly, during the course of interaction, this Court did not
perceive any visible indication of fear, tutoring, coercion or emotional
distress. The child appeared capable of expressing an independent and
reasoned preference.
10. We have heard learned counsel for the parties and perused the
record.
11. It is trite law that in matters concerning custody and
guardianship of children, the paramount consideration is not the legal
right of either party, but the welfare and best interests of the child. The
Supreme Court in Gaurav Nagpal v. Sumedha Nagpal , (2009) 1 SCC
42, has held, that while adjudicating custody disputes, the welfare of
the child must override all statutory and parental rights, as under:
“50. When the court is confronted with conflicting demands
made by the parents, each time it has to justify the
demands. The court has not only to look at the issue on
legalistic basis, in such matters human angles are relevant
for deciding those issues. The court then does not give
emphasis on what the parties say, it has to exercise a
jurisdiction which is aimed at the welfare of the minor. As
observed recently in Mausami Moitra Ganguli case [(2008)
7 SCC 673 : JT (2008) 6 SC 634] , the court has to give due
weightage to the child's ordinary contentment, health,
education, intellectual development and favourable
surroundings but over and above physical comforts, the
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moral and ethical values have also to be noted. They are
equal if not more important than the others.
51. The word “welfare” used in Section 13 of the Act has to
be construed literally and must be taken in its widest sense.
The moral and ethical welfare of the child must also weigh
with the court as well as its physical well-being. Though
the provisions of the special statutes which govern the
rights of the parents or guardians may be taken into
consideration, there is nothing which can stand in the way
of the court exercising its parens patriae jurisdiction
arising in such cases.”
12. Likewise, in Nil Ratan Kundu v. Abhijit Kundu , (2008) 9 SCC
413, the Supreme Court reiterated that custody issues cannot be
decided merely on the basis of legal entitlement of parties and that the
Court exercises parens patriae jurisdiction with the welfare of the
child being the dominant consideration. The relevant paragraphs are
extracted as below:
“ Principles governing custody of minor children
52. In our judgment, the law relating to custody of a child
is fairly well settled and it is this: in deciding a difficult and
complex question as to the custody of a minor, a court of
law should keep in mind the relevant statutes and the rights
flowing therefrom. But such cases cannot be
decided solely by interpreting legal provisions. It is a
human problem and is required to be solved with human
touch. A court while dealing with custody cases, is neither
bound by statutes nor by strict rules of evidence or
procedure nor by precedents. In selecting proper guardian
of a minor, the paramount consideration should be the
welfare and well-being of the child. In selecting a
guardian, the court is exercising parens patriae jurisdiction
and is expected, nay bound, to give due weight to a child's
ordinary comfort, contentment, health, education,
intellectual development and favourable surroundings. But
over and above physical comforts, moral and ethical values
cannot be ignored. They are equally, or we may say, even
more important, essential and indispensable
considerations. If the minor is old enough to form an
intelligent preference or judgment, the court must consider
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such preference as well, though the final decision should
rest with the court as to what is conducive to the welfare of
the minor.”
13. In the aforesaid backdrop, there is no quarrel with the
proposition canvassed by the Appellant that ordinarily a biological
mother occupies a preferential position in matters concerning custody
of minor children. Equally, Section 19(b) of the Guardians and Wards
Act places restrictions upon appointment of a guardian where a natural
parent is alive and not found unfit. However, it is equally well settled
that the statutory preference available to a natural parent is not
absolute and must yield where the welfare of the child demands
otherwise.
14. In the facts of the present case, the children have admittedly
remained in the care and custody of Respondent No.1 and the paternal
family since the year 2016. Almost ten years have elapsed since the
children ceased to remain in the Appellant’s day-to-day custody and
during this prolonged period, the children have grown up in a
particular social and emotional environment and are presently well
settled in Mumbai.
15. More significantly, both the learned Family Court had
interacted with both children. This Court has independently interacted
with Aleena, who continues to be a minor, as the other child has
already grown major by now. The consistent preference expressed by
the children before Family Court and by minor girl child before this
Court is that they do not wish to relocate from the present
environment in which they are residing.
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16. The preference expressed by a child of mature age and
sufficient understanding cannot be brushed aside lightly. Though the
wishes of the child are not determinative, they undoubtedly constitute
an important factor in evaluating the welfare of the child.
17. Baby Aleena is presently about 15 years of age. At this stage of
adolescence, compelling the child to relocate against her clear wishes,
may seriously disrupt her emotional equilibrium, educational
continuity and psychological wellbeing.
18. We are also conscious of the allegations regarding non-
compliance of visitation orders and the grievance of parental
alienation raised by the Appellant. Any attempt by a custodian to
undermine the emotional relationship of children with the other parent
is unquestionably a matter of concern.
19. However, even while taking the said allegations into
consideration, this Court cannot lose sight of the present realities
obtaining in the life of the children. Custody adjudication cannot be
undertaken as an exercise to determine inter se dispute between adults.
The determinative consideration remains the present and future
welfare of the children. At this stage, unsettling the existing custody
arrangement, despite the unequivocal and consistent wishes expressed
by the children, may not advance their welfare.
20. In view of the foregoing, and particularly in light of the
unequivocal wish expressed by the minor child Aleena before this
Court during the interaction held on 18.05.2026, we find no ground to
interfere with the impugned Judgment and Decree dated 20.03.2025.
The findings of the Learned Family Court, which are premised on
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Signing Date:30.05.2026
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extensive interaction with the children, appreciation of evidence, and
the welfare of the children, do not call for any interference at this
stage.
21. Accordingly, the present appeal is disposed of sustaining the
Judgment and Decree dated 20.03.2025 passed by the learned Family
Court in GP No. 48/2022 and GP No. 66/2022.
22. The visitation rights granted to the Appellant under the
impugned Judgment shall continue to remain operative and shall be
strictly complied with by Respondent No.1 in both letter and spirit. It
is further open to the children to reside with the Appellant/mother
during their visit to Delhi, if so desired by them. It is clarified that
since Master Ayaan Ali has attained majority, the question of his
custody or guardianship no longer survives for consideration and he
shall be at liberty to reside wherever he chooses.
23. Respondent No.1 shall further ensure that the children
meaningfully interact with the Appellant during the visitation periods
as well as during video-call sessions, without obstruction or
impediment.
24. It is clarified that any deliberate violation of the visitation
arrangement shall entitle the Appellant to seek appropriate remedies in
accordance with law.
25. Pending applications, if any, also stand disposed of.
VIVEK CHAUDHARY, J
RENU BHATNAGAR, J
MAY 18, 2026/my/kp/tr
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Signed By:NEHA
Signing Date:30.05.2026
16:23:56