Mother cannot be deprived right to the custody of daughter, Allahabad High Court

Observing that the mother is the natural guardian of a minor child below five years of age and ordinarily, she would be allowed to have the custody of her minor child, the Allahabad High Court has held that even if the company of the minor daughter was given to the husband at the time of separation, it would not deprive the mother of her right to custody of the daughter.

Dismissing the first appeal filed by one Amit Dhama of Meerut district, a division bench comprising Justice Ashwani Kumar Mishra and Justice Donadi Ramesh said,

“Merely because the mother has been deprived of the company of her daughter at the time when the couple separated and the fact that the daughter had continued to be in the company of the father for some itself would not be a sufficient circumstance to deny custody of the minor daughter to the mother who is her natural guardian.

 Various physical, emotional, and psychological needs of the four-year-old daughter would be better protected in the care and custody of her mother.”

The father-appellant – Amit Dhama approached the high court against the order of the family court dated August 31, 2024, granting ex-parte custody of the fourth-year-old daughter to the mother-respondent.

 It was pleaded that the father was taking care of the daughter and there was no need to give her custody to the mother.

However, the court observed that the parties were married in 2010 and have a son and a daughter. The husband had filed a divorce petition wherein the wife filed for custody of the daughter.

It was observed that the son was studying in a boarding school, and the father was paying expenses while the daughter was living with the father.

“Admittedly, the mother is the natural guardian of a minor child below five years of age and ordinarily, she would be allowed to have the custody of her minor child, unless, for specific reasons, a different course is warranted.

 It is otherwise settled that in the matter of child custody, the  primary concern is the welfare and well-being of the child.”

The court observed that the argument that removing the daughter from the care of the father would be traumatic for her was unimpressive.

It held that even though the transfer of custody may cause psychological stress for the child, however, the interest of the parties had to be balanced.

It was observed that the mother was a graduate, living alone, and no allegations of harm happening to the daughter by the mother were made.

Holding that the mother can meet the various needs of the daughter, the Court upheld the order of the family court.

Noting that both parents were given visitation rights, the court in its order dated January 10 dismissed the appeal filed by the father.