‘Childhood Not Lived On Screens’: Delhi High Court Dismisses Mother’s Appeal, Rejects ‘Stereotypical’ Tender Years Doctrine And Grants Custody To Father
Safiya Malik
The High Court of Delhi Division Bench of Justices Anil Kshetarpal and Harish Vaidyanathan Shankar dismissed a mother’s challenge to a custody order and declined her request to relocate the parties’ two minor children to the United Kingdom, holding that the long-used “tender years” presumption in favour of mothers proceeds on stereotyped assumptions and does not fit contemporary custody decision-making. The dispute concerned whether the children should remain in India with the father or move abroad with the mother for her employment. The Court directed that the children must not be taken out of the territorial jurisdiction of Indian courts and that their custody shall vest with the father, noting that overseas relocation would reduce the father to a largely virtual, intermittent presence because childhood cannot be meaningfully lived through screens.
The proceedings arose from a matrimonial appeal filed by the wife–mother challenging a Family Court judgment granting custody of two minor children to the husband–father under the Guardians and Wards Act, 1890. The Family Court had directed transfer of custody of both children to the father and issued detailed directions on visitation, communication, counselling, and restrictions on relocation.
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Parallelly, a contempt petition was instituted by the father alleging violation of interim orders passed during the pendency of the appeal, particularly concerning access to the children and updating of records reflecting paternity. With consent of parties, the High Court heard both matters together and disposed them by a common judgment.
The mother contended that she was the primary caregiver, that the welfare of the children lay with her, that the children expressed reluctance to interact with the father, and that the Family Court ignored her financial capacity and professional stability. She also relied upon the tender years doctrine and alleged serious misconduct against the father.
The father opposed the appeal, alleging sustained parental alienation, repeated unilateral relocations of the children across cities, abuse of legal process through multiple criminal proceedings, and obstruction of access despite court orders. He submitted that the children’s welfare demanded restoration of paternal presence and stability within India. The contempt petition stemmed from alleged non-compliance with interim access directions issued during the appellate proceedings.
The Court observed: "Historically, the doctrine appears to have evolved at a time when societal norms rigidly ascribed the role of breadwinner to the father and that of homemaker and primary caregiver to the mother...Such rigid compartmentalisation of parental roles no longer accords with contemporary realities.”
It stated that “the overarching and paramount consideration is the welfare and best interest of the child, which far outweighs the competing rights or entitlements of either parent.” The Bench noted that "A wholesome upbringing demands more than periodic visual access; it requires the daily, tangible presence of a parent who can guide, correct, comfort, and nurture. The presence of the father in the lives of the children is not a matter of parental entitlement but a facet of the children's own right to balanced emotional development.”
Regarding the child’s expressed preference, the Court stated that “the question what is the wish of the child is different from what would be in the best interest of the child.” It observed that hostility expressed by the son “appears not to stem from an independent articulation but from a conditioned response shaped by prolonged exclusion.”
The Court stated sibling unity, observing that “separating siblings would be inimical to their holistic development and emotional stability.” On relocation, it observed that “childhood is not lived on screens,” and that reducing a parent’s role to virtual access would not serve the children’s welfare.
The Court also strongly deprecated the mother’s conduct in alleging sexual abuse against the father in relation to the minor son, treating the allegations as motivated and a counterblast to the custody proceedings, and observed thus: "The absence of any reference to such grave allegations at the stage of pleadings leads us to conclude that the same do not inspire confidence or appear to be genuine.”
The Court held that “the Tender Years Doctrine cannot be applied as a determinative principle in the present case, and the issue of custody must necessarily be governed by the paramount consideration of the best interests of the children. The application seeking relocation is rejected,” and that “the children shall not be removed from the territorial jurisdiction of the Indian courts.”
The Court clarified that “the present adjudication is confined solely to the issue of custody,” and that if either party seeks “formulation, modification, or enforcement of visitation or access arrangements, including physical meetings, telephonic or electronic interaction, or interim custody during vacations or special occasions,” such party may approach the learned Family Court, which shall decide the same “in accordance with law, keeping the welfare and best interests of the children as the paramount consideration.”
“The conferment of custody upon the Respondent-father shall not be construed as diminishing the role or responsibility of the Appellant-mother,” and that she is “expected to continue to contribute meaningfully towards their education, healthcare, and overall development. The children shall continue to undergo counselling under the supervision of qualified professionals at an institution of repute,” to be identified by the father “in consultation with the Appellant-mother.”
“Both parents shall scrupulously ensure that the children are insulated from hostility, denigration, or emotional coercion against the other parent. With the aforesaid directions and observations, the Matrimonial Appeal and the Contempt Petition, along with pending application(s), if any, stand disposed of.”
Advocates Representing the Parties
For the Petitioner / Appellant (Mother): Mr. Prosenjeet Banerjee, Ms. Shreya Singhal, Ms. Mhasilenuo Keditsu, Ms. Kushagra, Ms. Anshika, Advocates
For the Respondent (Father): Ms. Padma Priya, Ms. Chitrangda Rastrauara, Mr. Abhijeet Singh, Mr. Anirudh Singh, Mr. Aishwary Mishra, Mr. Dhananjay Shekhawat, Mr. Sakshi Aggarwal, Mr. Yuvraj Singh, Ms. Pearl Pundir, Ms. Bhumika, Advocates
Case Title: XXX v YYY
Neutral Citation: 2026: DHC:549-DB
Case Numbers: CONT.CAS(C) 203/2025; MAT.APP.(F.C.) 279/2024
Bench: Justice Anil Kshetrapal, Justice Harish Vaidyanathan Shankar
