Mother Who Consciously Gave Son’s Custody To Father In Divorce Settlement Cannot Later Claim ‘Superior’ Right: Gujarat High Court
Safiya Malik
The High Court of Gujarat Division Bench of Justice Sangeeta K. Vishen and Justice Nisha M. Thakore dismissed a mother’s appeal seeking permanent custody of her minor son and allowed the child to continue in the father’s custody. The Bench affirmed the family court’s view that the mother had signed a customary divorce agreement granting the father permanent custody as a conscious decision and could not later seek custody on the basis of a superior right. While declining to alter custody, the Court left intact the mother’s exclusive visitation arrangement, permitting her to meet the child on the first and third Sunday of every month from 10 a.m. to 5 p.m. at a public place in Ahmedabad or any location where the child is comfortable.
The dispute arose between estranged spouses following a customary divorce executed in October 2022. A minor son was born from the marriage in May 2021. Under the terms of the divorce deed, the mother waived her claim to permanent custody of the child, which was agreed to remain with the father, while reserving visitation rights. After more than a year, the mother approached the Family Court seeking permanent custody of the minor child, invoking provisions of the Guardian and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956.
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She contended that as the natural guardian of a child below five years, custody should ordinarily vest with her, and that the custody clause in the divorce deed was void, having been executed under coercion. She also relied on her educational qualifications, income, and residential circumstances to assert that the child’s welfare would be better served in her custody. The father opposed the claim, asserting that the custody arrangement was voluntarily agreed upon, had not been challenged separately, and that the child had remained in his care since infancy, receiving proper education, emotional support, and overall welfare. Evidence included the divorce deed, school records, photographs, income documents, and bank statements.
The Division Bench observed: "the above condition unequivocally provides that the permanent custody of the child shall be with the respondent father. Now before this Court it is sought to be contended that the divorce deed was executed under duress and coercion and is not out of freewill. Decision to hand over the custody was conscious decision taken by the appellant-mother and it cannot be said that it was under force or pressure or coercion. It is difficult to fathom that if the appellant-mother was of the opinion that agreement was a result of a coercion why did she not challenge. The first thing the mother would do, is to challenge it. After almost one year and one month, the appellant-mother preferred the application seeking permanent custody of the child; however, until now the divorce deed is not challenged".
On the argument that custody of a child below five years should ordinarily be with the mother, the Court referred to Section 6 of the Hindu Minority and Guardianship Act and stated that the provision uses the expression “ordinarily”, which does not mandate custody in all circumstances. The Bench recorded that “welfare of the child is paramount and is to be considered” and that both parents are natural guardians.
The Court took note: "This Court, is satisfied that though the child is of the tender age of four and half years, possesses all the etiquettes, discipline and courtesies. The child shares a close bond with his father. Moreover, the respondent father is aware about each and every need of the child...In the facts of the case the appellant mother had executed a divorce deed and has handed over the custody of child taking a conscious decision and hence, she cannot claim superior custody right. In the absence of any perversity pointed out by the learned advocate appearing for the appellant-mother, this Court, is of the opinion that the impugned judgment does not warrant any interference so also the appeal".
With respect to income and residence, the Court found that the father earned a regular salary and had family support nearby, noting that “there is nothing on record…to demonstrate that the child’s welfare is being compromised in any manner in current living situation with the opponent.” It further recorded that removing the child from the father’s custody after several years and placing him in a “totally strange and new environment” could not be considered in the child’s welfare. The Bench expressed agreement with the Family Court’s assessment of the evidence and reasoning.
The Court directed that “the impugned judgment does not warrant any interference” and that “the appeal, therefore, is dismissed.” The custody of the minor child was directed to remain with the father.
The appellant-mother shall continue to have “exclusive visitation rights to meet and see minor son on every 1st and 3rd Sunday of each calendar month from 10:00 a.m. to 05:00 p.m. at any public place suitable to the parties.” The appellant-mother “is allowed to talk to her child through video call / audio call once in a week for 30 minutes as per the convenience of the child.”
The appellant-mother “is also permitted to meet and see her minor child on his birthdays for three hours as per the convenience of the child.”
“The connected civil application shall also stand dismissed accordingly.” The Registry was directed that “the Record & Proceedings be remitted to the Court concerned forthwith.”
Advocates Representing the Parties
For the Appellant-Mother: Mr Maharshi S. Joshi, Advocate; Mr Sudhanshu A. Jha, Advocate
For the Respondent-Father: Mr Bhunesh C. Rupera, Advocate
Case Title: XX v YY
Case Number: First Appeal No. 2780 of 2025
Bench: Justice Sangeeta K. Vishen, Justice Nisha M. Thakore
