“To Uproot the Child Again at This Stage May Not Be in the Best Interests of the Child”: Punjab and Haryana High Court Rejects Interim Custody Plea by Mother
Isabella Mariam
The High Court of Punjab and Haryana Single Bench of Justice Vikram Aggarwal dismissed a revision petition challenging the denial of interim custody of a minor child to the mother. The Court held that “to uproot the child again at this stage may not be in the best interests of the child” and directed that the child, who had been residing with the father for over a year, should remain in the father’s interim custody. The Court left the issue of final custody to be determined by the Family Court and maintained the mother’s visitation rights.
The petitioner and the respondent were married on 26.05.2019 in accordance with Hindu rites. A male child was born on 16.12.2021. Subsequently, disputes arose between the couple, leading to the filing of a mutual consent divorce petition under Section 13-B of the Hindu Marriage Act, 1955. A joint statement was recorded on 31.01.2021, wherein the parties amicably resolved matters related to dowry, maintenance, and permanent alimony of ₹9,00,000. Of this amount, ₹4,50,000 was paid on the date of the first motion, and the remaining amount was agreed to be paid at the time of the second motion.
It was also jointly declared that the petitioner had handed over custody of the minor child to the respondent and would not claim custody or visitation rights in the future. The petition stated that both parties would remain bound by this arrangement.
However, on 16.03.2024, the petitioner appeared before the Family Court, Jind, and submitted that she no longer wished to proceed with the divorce and sought custody of the child. The Court summoned both parties for reconciliation, which was unsuccessful. The divorce petition was eventually dismissed on 15.04.2024. An appeal filed by the respondent against the dismissal was pending before a Division Bench.
Subsequently, the petitioner filed a custody petition under Section 7 read with Section 25 of the Guardians and Wards Act, 1890. Alongside, she filed an application seeking interim custody of the child. The respondent opposed both the petition and the interim application. The Family Court dismissed the interim custody application by order dated 02.12.2024, granting visitation rights to the mother. Aggrieved, the petitioner filed a revision petition under Article 227 of the Constitution of India before the High Court.
The petitioner argued that since the child was 3.5 years old, under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, interim custody should ordinarily lie with the mother. She contended that she was unaware of the implications when custody was handed over by her parents during the initial divorce proceedings and that she believed the handover was only for visitation purposes.
The petitioner’s counsel relied on judgments including Roxann Sharma v. Arun Sharma (2015), Pushpa Singh v. Inderjit Singh (1990), Mukul Chauhan v. Neha Aggarwal and Others (2019), and Saurabh Sharma v. Nishi (2023), to support the statutory presumption in favour of maternal custody for children below five years of age.
The respondent opposed the petition, maintaining that the custody arrangement had been mutually agreed upon and formally recorded. It was argued that the petitioner’s application was aimed at exerting financial pressure and disrupting the child's current stable environment. The respondent also submitted that the petitioner had attempted to forcibly take custody during the pendency of proceedings and that she lived with extended family while he worked from home and resided with his mother.
Justice Vikram Aggarwal examined the statutory framework and case law governing custody of minors. Referring to Section 6 of the Hindu Minority and Guardianship Act, 1956, the Court recorded:
“The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property... are—(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.”
The Court considered the precedents cited by the petitioner. Quoting from Roxann Sharma v. Arun Sharma, the Court stated:
“Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody... and specifies that custody should be given to the mother so long as the child is below five years in age.”
On the issue of parental suitability, the Court quoted:
“It is for the Father to plead and prove the Mother’s unsuitability since Thalbir is below five years of age. In these considerations the father’s character and background will also become relevant but only once the Court strongly and firmly doubts the mother’s suitability.”
However, applying the law to the facts of the case, the Court found multiple grounds for declining the transfer of interim custody to the mother at that stage.
Firstly, the Court noted: “The petition filed under Section 13-B of the HMA, 1955 contained a specific recital that parties had agreed that the custody of the minor son Aadhish would remain with the respondent-husband and that the petitioner-wife would not claim custody or meeting rights even in future.”
Secondly, it rejected the petitioner’s claim of ignorance: “The petitioner is stated to be a well educated woman and, therefore, it cannot be accepted that the recital in the petition as also in the joint statement was incorporated by keeping her in the dark.”
The Court also took into account the finding that the petitioner had attempted to forcibly obtain custody during the Family Court proceedings. The order dated 03.04.2024, recorded that she would only meet the child in the courtroom between 2:00 p.m. and 4:00 p.m.
With respect to the child’s living conditions, the Court recorded:
“The petitioner has lost her father and she lives with her paternal uncle (Taya) and maternal aunt (Massi)... On the contrary, the respondent is stated to be working from home and lives with his mother. It appears that the child is looked after by the father and the grand-mother.”
Considering the financial circumstances, the Court stated: “The petitioner is stated to be giving tuitions of mathematics and is stated to be earning about ₹10,000/- per month whereas the respondent is in the work of digital marketing and is stated to be working from home.”
On allegations by the respondent concerning the petitioner’s personal relationships, the Court noted:
“Though such allegations are common in matrimonial disputes... under such circumstances, in the considered opinion of this Court, for the present, the welfare of the child would be to remain with the respondent.”
Most significantly, the Court recorded its personal interaction with the child:
“Despite best efforts on the part of the mother... the child did not go to the mother... The moment the father got up, the child started crying inconsolably stating that he would not leave his father.”
“One thing that emerges is that the child is happy with the father and to uproot the child again at this stage may not be in the best interests of the child.”
The Court ruled:
“All the aforesaid circumstances show that the situation in hand is not an ordinary situation. The custody of the child is with the father for the last more than one year now. To forcibly give the interim custody of the child to the mother at this stage may have an adverse impact on the mental well being of the child.”
It concluded: “Keeping in view solely the welfare of the child in mind at this stage, I do not deem it appropriate to grant the interim custody of the child to the petitioner.”
The Court stated:
“Visitation rights have already been granted to the petitioner and the main petition is still pending before the learned Family Court, Jind which shall be decided on its own merits.”
“In view of the aforementioned facts and circumstances, I do not find any merit in the present revision petition and the same is accordingly dismissed. However, nothing observed hereinabove shall be construed to be an opinion on the merits of the case.”
“Pending application(s), if any, stand(s) disposed of accordingly”.
Advocates Representing the Parties
For the Petitioners: Mr. Sanjiv Kumar Aggarwal, Advocate; Mr. Tejas Bansal, Advocate
For the Respondents: Mr. Ankit Chahal, Advocate
Case Title: XXX vs YYY
Neutral Citation: 2025:PHHC:046047
Case Number: CR-7432-2024
Bench: Justice Vikram Aggarwal
[Read/Download order]
