Kiran Raj

The Supreme Court of India Division Bench of Justice Manoj Misra and Justice Ujjal Bhuyan dismissed a mother’s appeal against the grant of custody of the minor son to the father, while refusing the father’s request to terminate the mother’s existing visitation rights. The Court held that a parent does not gain custody merely because they work from home, noting that working parents cannot always remain with the child and that the need to leave home to earn a livelihood should not count against their claim to custody. The Bench further stated that the child’s welfare cannot be determined solely on the basis of one parent’s remote work status or marginal differences in travel time to school, and left other custody issues to the competent court.

The case concerns a custody dispute between a mother, as appellant, and a father, as respondent, regarding their minor son. The appeal challenges an order of the High Court which had allowed the father’s revision and set aside earlier orders granting the mother custody of the child, while leaving it open for both parents to pursue custody proceedings before the Family Court under the relevant statutes. At the time the lower court granted custody to the mother the child was under five years of age; during the High Court proceedings he crossed that age.

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Before the Supreme Court, the mother argued that the High Court wrongly treated the father’s work-from-home arrangement as indicating superior caregiving capacity, asserting that her own role also permitted remote work and that this factor should not determine custody. She further contended that the distance of the child’s school from each parent’s residence was comparable, that the child desired his sister’s company as recorded in the counselor’s report, and that her travel abroad during the Covid-19 period was work-related and not irresponsible. The father supported the High Court’s view and sought discontinuation of the mother’s visitation rights, contending that frequent shifting between homes could disturb the child’s psychological development.

The Court observed: “It is not in dispute that both parents are working parents and, therefore, it is expected that they cannot always be physically with their children. But this cannot be a ground to place the custody of the child with the one who may be temporarily working from home because it is a matter of common knowledge that to meet individual as well as family aspirations married couples have to work to build a proper home and most importantly to secure better education for their ward which is getting costlier day by day.”

It further stated: “We, therefore, do not subscribe to the view that if one parent is working from home and the other not (i.e., has to visit his office for work) then it has to be inferred that child’s interest would be better served if he is placed in the custody of one who does not go to office for work.” “Likewise, in our view, distance from home to school is not a relevant consideration particularly when both sides reside in National Capital Region and the child is required to travel some distance for better education. Moreover, it hardly matters whether travel time is few minutes less or more.”

On the criticism of the mother’s travel abroad, the Court recorded: “Similarly, the view taken by the High Court that mother exhibited an irresponsible conduct by travelling abroad during Covid-19 period may not be a relevant consideration particularly when, according to her claim, she was duly vaccinated and such travel was the requirement of her job.”

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Regarding the decisive factors, the Court stated: “However, though we may find that the aforesaid aspects ought not to have weighed with the High Court while determining the custody issue, we should not be oblivious of the fact that Arjun is a male child and is aged above 5 years by now.” “In such circumstances, having regard to the fact that the male child is now above five years old and he continues to be in the same school where he was studying earlier and he has no issues with his own father and is not willing to part company of his father, an interference with the order passed by the High Court is not required, particularly in view of the fact that the appellant has visitation rights as directed earlier by this Court…”

The Court directed: “Consequently, we do not find a good reason to disturb the operative portion of the impugned order. Subject to above, the appeal is dismissed. The application of the respondent seeking discharge of the visitation rights granted vide order dated 3rd May 2024 by this Court in SLP (Criminal) No.836 of 2024 is rejected. Parties shall bear their own costs. Pending application(s), if any, shall stand disposed of.”

Advocates Representing the Parties:

For the Petitioners: Ms. Preeti Singh, AOR; Mr. Sunklan Porwal, Adv.

For the Respondents: Ms. Tina Garg, AOR; Mr. Anuraj Jain, Adv.; Mr. M.K. Ghosh, Adv.; Ms. Preeti, Adv.

Case Title: Poonam Wadhwa v. Ajay Wadhwa & Ors.
Case Number: Criminal Appeal No. /2025; Petition for Special Leave to Appeal (Crl.) No.12458/2024
Bench: Justice Manoj Misra, Justice Ujjal Bhuyan