Mother gets custody of 6-year-old son after five years apart; grandmother granted phased visitation in Allahabad High Court ruling

Sudha Tomar, the child’s natural mother, appealed against the Family Court’s refusal of her application for custody of her six-year-old son, Shreyansh, under Sections 7 and 25 of the Guardians and Wards Act, 1890.

The child’s father died in September 2020, when the child was eight months old, and the child thereafter remained with his paternal grandmother.

The mother alleged that she had been prevented from seeing him and that an agreement said to relinquish her claim to custody had been procured by obtaining her signatures on blank paper.

The grandmother relied on that agreement, an alleged will by the father, the child’s statement expressing a wish to remain with her, and the child’s settled circumstances.

The appeal was brought under Section 19 of the Family Courts Act, 1984 and Section 47 of the Guardians and Wards Act, 1890.

1. Whether the child’s welfare required custody to be given to his natural mother rather than his paternal grandmother, having regard to the child’s age, circumstances, and relationship with each party.

2. Whether the child’s expressed preference and his residence with the grandmother for several years outweighed the mother’s claim, and what transitional visitation arrangements were appropriate.

Under Sections 7 and 25 of the Guardians and Wards Act, 1890, the child’s welfare is the paramount consideration in deciding guardianship and custody; the court must assess welfare in light of all relevant circumstances, including care, health, education, comfort, and the guardian’s capacity, rather than apply a rigid rule.

Section 6(a) of the Hindu Minority and Guardianship Act, 1956, as interpreted in Githa Hariharan v. Reserve Bank of India, treats “after” as “in the absence of,” so a mother may act as natural guardian when the father is absent from the care of the minor.

The court also relied on the principle that a young child’s stated preference may not amount to an intelligent preference where the child has been separated from a parent and has lived only with the current caregivers; custody may be transferred where welfare favours the parent, with visitation used to ease the transition.

The Court treated the mother as the natural guardian in the father’s absence and assessed the competing claims by the child’s welfare, not by the disputed agreement or alleged will.

It found those documents of limited assistance because the agreement was disputed and the will had not been produced in original or proved.

Although the child had lived with the grandmother for over five years and expressed a wish to remain with her, the Court considered that he was only six, had been denied access to his mother, and might not be capable of making an intelligent preference in those circumstances.

The Court also considered the parties’ financial circumstances broadly balanced and found no demonstrated unfitness on the mother’s part; the grandmother’s care of the child and the child’s existing bond with her did not, by themselves, justify denying the mother custody.

Relying on the principle that initial disruption may be overcome over time, the Court provided for continuing contact with the grandmother during the transition.

For the first six months, the grandmother was granted one full day of access each week, from 8 a.m. to 6 p.m., at the mother’s residence; for the following six months, she could visit on every second weekend.

The parties could mutually extend those arrangements, and the grandmother could seek further modification after one year.