Grandmother Cannot Replace the Love and Care of the Mother: Delhi High Court Affirms Custody of Minor Girl to Mother While Expanding Father’s Visitation Rights

Custody of a Minor Under Five Shall Ordinarily Be With the Mother Unless There Are Cogent Reasons to Deviate – Delhi High Court rendered a significant judgment on the question of custody of a four-year-old minor girl. The Court affirmed the order of the Family Court, Rohini, granting custody to the mother, observing that "the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother". The Court, however, found that the restrictions on the father’s visitation rights imposed by the Family Court were unjustified and broadened his access to the child. This decision is vital as it balances the statutory preference for maternal custody with the child's right to maintain a meaningful relationship with both parents.

The respondent, Smt. Pooja Mishra, was allegedly "forcibly thrown out" of the matrimonial home on 11th June 2024 and filed a guardianship petition almost immediately, seeking custody of her minor daughter. On

21st March 2025, the learned Principal Judge, Family Court, Rohini, Delhi, granted custody to the mother, allowing the appellant (father) limited, court-supervised visitation.  

The appellant challenged the Family Court's order, asserting that the minor had been living happily with him ever since the respondent left the matrimonial home. He contended that the allegation of "parental alienation" was a mere pretext to claim custody. He also claimed that the Family Court had decided the matter mechanically, without considering the best interest of the child, and relied upon the Supreme Court judgment in Col. Ramneesh Pal Singh v. Sugandhi Aggarwal, 2024 SCC OnLine SC 847.

The respondent opposed the appeal, emphasizing that the child was merely four years old and as per law, the mother was the natural guardian. The respondent also highlighted that the minor's age, coupled with the fact that the respondent was compelled to leave due to cruelty, warranted custody being granted to the mother.

The Court identified the central issue as the custody of a minor female child under the age of five. The Bench reiterated the importance of Section 6(a) of the Hindu Minority and Guardianship Act, 1956, observing: "Section 6(a) of the Hindu Minority & Guardianship Act, 1956 states that the custody of a minor child shall ordinarily be with the mother."

Citing the Supreme Court’s authoritative pronouncement in Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318, the Court noted:  "The HMG Act postulates that the custody of an infant or a tender-aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the likelihood of the welfare and interest of the child being undermined or jeopardized if the custody is retained by the mother."

The Court observed that no such cogent reason had been presented by the appellant. It was further stressed: "The grandmother cannot replace the love and care of the mother."

The Bench held that the emotional and psychological needs of a minor female child in her formative years are paramount and the mother’s custody was essential for the child's welfare. The Court found it significant that:

"There is no material placed by the appellant which may persuade us to find that the respondent is not entitled to the custody of the minor child."

The Bench also recognized that the respondent had not abandoned the child but had taken immediate legal steps by filing a guardianship petition soon after being forced out of the matrimonial home:  "It cannot therefore, be said that the respondent had abandoned the child."

While upholding the Family Court’s decision granting custody to the mother, the High Court found that the visitation arrangement was too restrictive. The Family Court had limited the father’s visitation to two days a month in a supervised environment within the Court premises. The High Court found this unjustified, particularly since:

"There was no allegation in the Guardianship Petition as also in the Impugned Order that the appellant was not appropriately behaving with the child or was unfit to have regular visitation with the child."

 Recognizing the importance of a child’s relationship with both parents, the Court modified the arrangement and directed:

 "The appellant shall be entitled to the visitation rights over the child from 10:00 A.M. till 6:00 P.M. every Saturday and Sunday of the month."

 Further clarifying, the Court held: "There shall be no restriction on where the appellant may take the child during this period. However, the child shall not be taken out of Delhi under any circumstances."

 The Court also recorded the voluntary undertaking by the appellant: "The custody of the minor child shall be handed over to the respondent on Monday, that is, 31.03.2025, at her residence by 10:00 A.M."

 Lastly, the Court gave liberty to both parties: "The parties shall be entitled to seek modification of the above arrangement, if there are reasons for the same, from the learned Family Court."

 The Delhi High Court, while respecting the statutory presumption favoring maternal custody for minors below five years, thoughtfully expanded the father’s access to his child. The judgment demonstrates a sensitive approach to balancing the child’s welfare, statutory provisions, and the child’s emotional bond with both parents.

Date of Decision: 28th March 2025