Custody of Child Below Five Years with Mother Is Not Absolute: Delhi High Court

“Welfare of the Child Overrides Statutory Parental Preference”: Delhi High Court, in a significant judgment affirming the supremacy of the child’s welfare over statutory parental preference, upheld the Family Court’s interim order granting custody of a four-year-old girl to her Indian father and restraining her Russian mother from taking the child out of India.

Justice Anil Kshetarpal and Justice Harish Vaidyanathan Shankar dismissed the mother’s appeal under Section 19 of the Family Courts Act, 1984, observing that “the paramount consideration in all custody disputes is the welfare and best interest of the child — not the statutory rights of parents.”

“Apprehension of Child’s Removal from India Justified — Family Court Rightly Restrained Mother from Leaving Jurisdiction”

The Bench noted that both the mother and the child are Russian citizens, and that the mother had previously approached the Russian Embassy for exit permits and expressed her intention to permanently return to Russia. Referring to these facts and a legal notice issued by her counsel, the Court held that “there exists more than reasonable apprehension that the appellant may seek to flee the jurisdiction of Indian Courts, rendering the custody proceedings infructuous.”

The Court observed:

“If the respondent-mother were permitted to take the minor out of India, the entire process of adjudication would stand nullified. The Family Court was correct in restraining her from removing the child from Indian territory until final adjudication.”

The Bench emphasized that India is not a member of the Hague Convention on Child Abduction, which makes international enforcement of custody orders through diplomatic channels difficult and often ineffective. Referring to the ongoing case of Viktoriia Basu v. State of West Bengal before the Supreme Court, the Court noted how “the removal of a child from Indian jurisdiction can frustrate the administration of justice and permanently deny access to the Indian parent.”

“Welfare of the Minor Is the Governing Principle — Not the Rights of Either Parent”

Rejecting the mother’s reliance on Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which provides that custody of a child below five years “ordinarily” rests with the mother, the Bench clarified that the provision is not absolute and is subject to the paramountcy of the child’s welfare under Section 13 of the Act and the parens patriae jurisdiction of the Court.

Quoting the Supreme Court’s rulings in Gaurav Nagpal v. Sumedha Nagpal [(2009) 1 SCC 42] and Sheoli Hati v. Somnath Das [(2019) 7 SCC 324], Justice Shankar observed:

“The welfare of the minor, not the legal rights of the parents, is the determining factor. The moral, emotional, and physical well-being of the child outweighs all other considerations.”

The Court endorsed the Family Court’s finding that while the child was under five, the father provided a stable home and family environment in Dehradun, whereas the mother “was leading a nomadic life, with no fixed residence or income, working on short-term contracts and attempting to leave India.”

“Courts Must Ensure Their Jurisdiction Is Not ‘Snatched Away’ by Cross-Border Flight”

The Bench warned that courts must remain vigilant against situations where one parent’s departure from India could frustrate custody proceedings:

“The ability of courts to adjudicate meaningfully depends on their power to enforce their orders. Permitting the removal of a minor from Indian jurisdiction would strip the court of that power and render the process futile.”

Citing Prateek Gupta v. Shilpi Gupta [2017 SCC OnLine SC 1421], the Bench reaffirmed that continuity and environmental stability are vital to a child’s welfare. The child in the present case had been living in India since infancy, and uprooting her would be detrimental to her development.

“Balanced Visitation Rights for Mother — Custody with Father Ensures Stability”

Upholding the Family Court’s arrangement, the High Court found that the visitation and communication rights granted to the mother were fair and compassionate. Under the Family Court’s order:

The mother is entitled to daily video calls with the child for 15–30 minutes.

She can have overnight custody every weekend in Dehradun (Saturday noon to Sunday 5 p.m.).

If she chooses to settle in Dehradun, the father must arrange and fund suitable accommodation (a 1BHK flat) and pay her ₹10,000 per month for maintenance.

Justice Kshetarpal noted that these conditions “balance the mother’s emotional bond with the child against the need for stability and security during ongoing proceedings.”

“Statutory Parental Preference Cannot Override Child’s Welfare — No Interference Warranted”

Concluding the judgment, the Division Bench held:

“The Family Court has correctly applied the welfare principle. Section 6(a) of the HMG Act confers only an ordinary preference, not an indefeasible right. Given the peculiar facts — the mother’s foreign nationality, lack of residence, and prior attempts to leave India — the interim custody with the father is justified.”

The Court dismissed the appeal, maintaining the restriction on the mother from removing the child from India, and directed that the Family Court’s interim order dated February 1, 2025, remain in force until final determination of the custody petition.

“The touchstone for determining custody is not who has the right, but who serves the child’s welfare best. The stability, safety, and future of the minor cannot be sacrificed at the altar of parental preference,” the Bench remarked.

Date of Decision: November 4, 2025