Isabella Mariam

The High Court of Maharashtra Division Bench of Justice R.I. Chagla held that the welfare of the minor is the paramount consideration in guardianship proceedings and confirmed the appointment of the respondent as the legal guardian. The Court dismissed the petitions filed by the biological grandparents and maternal aunt seeking guardianship and custody under the Guardians and Wards Act, 1890. The Bench recorded that the respondent had been caring for the minor since the demise of the parents and that any disruption of this established environment would not serve the minor’s best interest. The Court also ordered that continued access to the biological family be facilitated, while confirming that custody would remain with the respondent. All petitions filed by the biological relatives were accordingly dismissed.

The matter pertained to competing claims for the guardianship and custody of a minor child, whose parents passed away in 2021 and 2023 respectively. Following the demise of the mother, the father relocated to Mumbai and began cohabiting with the respondent, who is a relative of the child’s mother. After the father's passing in a road accident, the respondent continued to care for the child, prompting the biological grandparents and maternal aunt (collectively, the petitioners) to seek legal custody.

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The petitioners initially filed an application seeking permanent custody of the minor under the Guardians and Wards Act, 1890, followed by additional guardianship petitions. The respondent opposed these claims and filed a separate petition to be declared the legal guardian.

The petitioners submitted that they had been an integral part of the minor’s life since birth, citing their visits to Dubai where the child was born, and his regular presence at their homes in Goa and Mumbai for birthdays and family functions. They claimed that the respondent unlawfully retained custody of the minor following the father’s death and prevented access to the child.

The respondent, on the other hand, contended that she had been the primary caregiver since 2021 and was acting in the minor’s best interests. She provided evidence of the father’s cohabitation and intentions to marry her. After his passing, the respondent claimed that the petitioners attempted to forcibly take custody of the child and that their conduct caused emotional distress.

Numerous events transpired, including a non-cognizable police complaint, attempted mediation by law enforcement, involvement of the Child Welfare Committee (CWC), and temporary placement of the child in a shelter home, all arising out of the custody dispute. These proceedings were accompanied by a writ petition filed by the respondent challenging the jurisdiction of the CWC and seeking restoration of custody.

The trial also involved scrutiny of financial capacities. The petitioners submitted that they possessed two properties, substantial savings, and a stable family structure that included another child who could act as a sibling figure. In contrast, the respondent declared a monthly income of approximately INR 34,491, of which a significant portion went toward rent and supporting her mother.

The petitioners alleged that the respondent had exercised psychological control over the minor, alienating him from his biological family. They contended that the respondent lacked financial means and moral credibility, citing her past marital status and relationship with the deceased father. They sought interim and permanent custody under Sections 7 and 12 of the Guardians and Wards Act, 1890.

The respondent maintained that she provided stability and had developed a deep emotional bond with the minor. She highlighted her continuous care, educational support, and medical responsibilities for the child since the father’s death. She also submitted an affidavit of no objection from the father’s parent supporting her claim.

The Court heard arguments on applicable legal principles, including precedents on guardianship, moral welfare, financial sufficiency, and the child’s psychological well-being. Counsel for both sides presented multiple judgments from the Supreme Court and various High Courts interpreting Section 17 of the Guardians and Wards Act, 1890, and related statutes.

The Court also referred to a report by a court-appointed counsellor who interacted with the minor. The report indicated that the minor viewed the respondent as a mother figure and showed hesitancy in engaging with the biological grandparents and aunt. It recommended that any custody decision be made carefully to preserve the child’s emotional stability.

The Bombay High Court considered the entire evidentiary record, including the affidavits filed by both parties, the Counsellor’s Report, and oral submissions, before arriving at its conclusions. The Court emphasized that the welfare and stability of the minor must be the paramount consideration in proceedings under the Guardians and Wards Act, 1890.

The Court recorded: “The minor has grown to be extremely attached to the respondent and there is a tremendous bonding between them.” It further stated: “I had an occasion to interact with the minor and during the interaction, I found that the minor referred to the respondent as his mother and was reluctant to acknowledge or meet his grandparents or aunt.”

The Court acknowledged the petitioners’ contention that the respondent may have influenced the child’s perception, stating: “The petitioners have contended that the respondent has a control over the minor, by having taken custody from them and that the minor has been alienated from the petitioners.” Nonetheless, the Court placed significant weight on the continuity of care provided by the respondent since the demise of the minor’s parents, noting that such long-term emotional and physical caregiving cannot be lightly displaced.

The Court addressed the petitioners’ financial standing but held that such factors were not determinative in guardianship matters. It observed: “Although the petitioners possess sufficient means, including two houses and substantial savings... these factors, while relevant, are not decisive.”

Referring to the importance of preserving emotional bonds and routine in the life of a minor, the Court stated: “The petitioners are residents of Goa... it would not be in the minor’s interest that he is uprooted from his familiar surroundings in Mumbai and made to live in Goa.”

The Court relied on the Counsellor’s Report and the factual matrix in the affidavits, stating: “Considering the Counsellor’s Report as well as the aforementioned facts which had been brought on record by way of Affidavit of Evidence filed by the Petitioners and the Respondent, it appears that the minor would be best suited with the Respondent and for which the Respondent is required to be declared as Guardian of the minor, conditional upon the Respondent providing access of the minor to the Petitioners either at the residence of the Respondent or at the Petitioners’ residence in Mumbai.”

It added: “Further, the Respondent is also required to allow the minor to spend at least one vacation in the year with the Petitioners at their residence in Goa and this may be either with the Respondent or a family friend of the Respondent accompanying the minor with whom the minor is comfortable.”

On the issue of prior events involving police intervention, child welfare authorities, and the shelter home, the Court declined to enter factual disputes, stating: “Although there were submissions and counter-submissions by the Petitioners and Respondent made with regard to the events which took place at the Kashimira Police Station; CWC at Ulhasnagar and the Children’s Home which has been referred to above, this Court is not going into this dispute, as it is the subject matter of the Criminal Writ Petition which has been filed by the Respondent and which will be adjudicated separately by the Bench taking up that matter.”

In conclusion, the Court observed that: “It is a settled principle that custody orders by their nature can never be final. However, before a change is made, it must be proved to be in the paramount interest of the child.” On that basis, it held that the child’s welfare would be best protected by remaining with the respondent, under structured access conditions to preserve the biological family’s connection.

The Bombay High Court concluded the matter by issuing a set of directions in the guardianship proceedings. The Court declared the petitioner in Guardianship Petition No. 2 of 2024 as the guardian of the minor and authorised her to manage the minor’s interests in specific immovable and movable properties. The Court held: “The petitioner in Guardianship Petition No. 2 of 2024 is declared as guardian of the minor and to look after the minor’s rights and interest in the properties mentioned in Schedule of properties annexed at Exh.AA and to manage, administer and hold the same for and on behalf of the minor till he turns major.”

Further, the petitioner was authorised to represent the minor in relation to various legal and administrative claims arising from the estate of the deceased biological father. The Court directed: “The petitioner is also appointed as competent person to pursue and/or initiate any proceedings as may be required or advised with respect to insurance scheme, all service benefit, PPF, gratuity and other claims of whatsoever nature of deceased biological father of the minor with respondent no.5 and/or with any other authorities or court of law and also to prosecute the claim and receive the same in proceeding pending before the Motor Accident Tribunal, Mumbai for and on behalf of the minor.”

These appointments were made conditional upon the petitioner permitting access to the minor by the respondents named in Guardianship Petition No. 2 of 2024, including visits at both residences in Mumbai and outings, subject to the child being returned the same day. The judgment recorded: “The order in (i) and (ii) above passed is subject to the petitioner allowing access of the minor to the respondents in Guardianship Petition No. 2 of 2024 at her residence and/or their residence in Mumbai including by allowing the respondents to make frequent visits and also permit them to take the minor for outings, subject to their returning him to the residence of the petitioner on the same day in the evening.”

The Court further directed that the respondents be allowed to spend at least one vacation annually with the minor at their residence in Goa. The petitioner or a close family friend trusted by the minor must accompany the child during this time. The order stated: “Further, the petitioner in Guardianship Petition No. 2 of 2024 shall allow the respondents to spend at least one vacation in the year of the respondents’ choice with the minor at their home in Goa and during which the petitioner and/or a close family friend of the petitioner to whom the minor is comfortable with shall accompany him to the respondents’ home in Goa.”

The Court made the guardianship declaration subject to the continuation of counselling for the minor, as advised by the Court-appointed counsellor, with participation from both the petitioner and the respondents. The Court ordered: “The declaration of the petitioner in Guardianship Petition No. 2 of 2024 as guardian shall be subject to the minor continuing counselling for a period of six months and during which sessions the petitioner and respondents shall remain present. This is as per the advice of the Court-appointed counsellor Dr. Vishakha N. Punjani. The counsellor Dr. Vishakha N. Punjani is requested to do the counselling.”

In the event the named counsellor is unavailable, the Court granted liberty to the parties to apply for the appointment of another independent and mutually acceptable counsellor. The Court directed: “ In the event, Dr. Vishakha N. Punjani is unable to do the counselling, liberty is granted to the parties to apply for appointment of an independent counsellor, who is agreeable to do the counselling and which this Court finds suitable to be appointed as counsellor.”

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Based on these terms, the Court disposed of the petition. The judgment recorded: “Guardianship Petition No. 2 of 2024 is accordingly, allowed with the above directions and disposed of.”

In light of this conclusion, the Court dismissed the other two guardianship petitions filed by the biological relatives. It stated: “In view of this order, Guardianship Petition No. 1 of 2024 and Guardianship Petition No. 13 of 2024 is dismissed.”

All pending Interim Applications filed therein do not survive and are disposed of accordingly. The Court concluded with no direction as to costs.

Advocates Representing the Parties

For the Petitioners: Ms. Susan Abraham a/w Mr. Narayan Suvarna, Ms. Poojasri Ganesan

For the Respondent: Mr. Rajendra Sorankar i/by Mr. Ketan Dabke

Case Title: XXX v YYY

Neutral Citation: 2025:BHC-OS:7088

Case Number: Guardianship Petition Nos. 1, 2, and 13 of 2024

Bench: Justice R.I. Chagla

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