Interim custody of a Hindu child below five ordinarily lies with the mother, subject to welfare.

The appellant-mother and respondent-father, both Assistant Professors at Vinoba Bhave University, married on 16 May 2017. Their daughter, Ekanshi Sharma, was born through IVF on 8 March 2022. The parties lived separately amid allegations of cruelty, abuse, and denial of access to the child. The mother alleged that the father forcibly took the child when she was approximately two years and three months old, obstructed maternal access, and exposed the child to an unhealthy and hostile environment. The father denied the allegations and asserted that the mother had abandoned the child, while he and his parents were providing proper care and education.

The mother instituted proceedings under Sections 7 and 25 of the Guardians and Wards Act, 1890, and filed applications under Section 12 seeking interim custody. The Principal Judge, Family Court, Hazaribagh, rejected the prayer for interim custody by order dated 27 November 2025, while granting the mother visitation rights. At that time, the minor was approximately three years and nine months old.

The mother challenged that order under Section 19(1) of the Family Courts Act, 1984.

Whether the Family Court’s order dated 27 November 2025, declining the mother’s application for interim custody under Section 12 of the Guardians and Wards Act, 1890, was perverse and warranted appellate interference?

Whether, having regard to the welfare of the minor child, her tender age, and the statutory preference for maternal custody of a child below five years, interim custody ought to be handed over to the mother pending disposal of the guardianship proceedings?

The Court applied Section 12 of the Guardians and Wards Act, 1890, which empowers the court to direct production of a minor and make appropriate orders for temporary custody and protection; Sections 7 and 25 of the same Act concerning appointment or declaration of guardianship and restoration of custody; and Sections 6(a) and 13 of the Hindu Minority and Guardianship Act, 1956, under which custody of a Hindu minor below five years ordinarily lies with the mother, subject always to the paramount consideration of the minor’s welfare.

The Court relied on Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42; Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413; Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67; Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471; Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318; Shazia Aman Khan v. State of Orissa, (2024) 7 SCC 564; and Gautam Kumar Das v. State (NCT of Delhi), (2024) 10 SCC 588, for the principles that the child’s welfare—not the competing legal rights of the parents—is paramount; welfare includes physical, emotional, educational, moral, and ethical well-being; a child requires the love and protection of both parents; and a child below five years should ordinarily remain with the mother unless strong reasons justify deviation.

The Court further relied on Arulvelu v. State, (2009) 10 SCC 206, and Damodar Lal v. Sohan Devi, (2016) 14 SCC 197, on perversity, holding that an order ignoring material pleadings, relevant law, or the evidence on record may be characterised as perverse.

The High Court held that the Family Court had not actually adjudicated the mother’s specific prayer for interim custody under Section 12. Instead, it granted visitation rights on the general reasoning that the child needed the affection of both parents.

This approach failed to apply the statutory power under Section 12 and did not properly consider the child’s age, the statutory presumption under Section 6(a) favouring maternal custody below five years, or the welfare principle under Section 13.

Although the child required love and care from both parents, that consideration could not substitute for a reasoned determination of the interim-custody application. The Family Court’s departure from the pleadings and failure to decide the issue placed its order within the scope of perversity.

Balancing the child’s welfare, tender age, need for maternal affection, and the absence of a properly reasoned finding justifying deviation from ordinary maternal custody, the High Court concluded that interim custody should be transferred to the mother, while preserving the father’s continuing relationship with the child through visitation.

Interim custody of the minor daughter was directed to be handed over to the mother until disposal of the main guardianship/custody proceedings.

The father was granted visitation rights on weekends from 10:00 a.m. to 5:00 p.m., at a mutually agreed place or as directed by the Family Court, without hampering the child’s studies.

The Family Court was authorised to modify the visitation arrangements in the child’s welfare, directed to decide the main proceedings expeditiously, and required to ensure transfer of interim custody to the mother within one week.