Interest Of Justice Demands Child Of Tender Age Remains In Mother's Custody: Himachal Pradesh High Court

"As minor child is of tender age, the interest of justice demands that he should remain in the custody of his mother," Himachal Pradesh High Court, in a significant ruling, held that the custody of an infant of "tender age" must remain with the mother to serve the ends of justice.

A bench of Justice Romesh Verma, while dealing with a challenge under Article 227 of the Constitution, observed that there was no error or infirmity in the orders of the courts below which granted interim custody of an 8-10-month-old child to the respondent-mother. The Court underscored that at such a delicate stage, the child's welfare is paramount and best served in maternal care.

The dispute arose from a marriage solemnized in January 2020, out of which a son was born in November 2020. The respondent-wife filed an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (DV Act), alleging that she was subjected to dowry-related harassment and threats of being separated from her child. Following these matrimonial strains, she sought interim custody of the minor and maintenance, leading to orders by the Trial Court which were later affirmed by the First Appellate Court.

The primary question before the court was whether the concurrent orders granting interim custody of an 8-10-month-old child and interim maintenance were legally sustainable. The court was also called upon to determine the scope of its supervisory jurisdiction under Article 227 of the Constitution of India when dealing with such interim arrangements.

Custody of Infants Of Tender Age

The Court observed that the minor child in the present case was aged only between 8 to 10 months. Given this "tender age," the Bench found that the lower courts were entirely justified in handing over the custody to the mother. The Court noted that the interest of justice is served when an infant remains with the mother, as the physical and emotional needs of such a young child are best addressed by her.

"No error or infirmity has been committed by the learned Courts below in handing over the custody to the mother."

Reasonableness of Interim Maintenance

The Court examined the order of the Judicial Magistrate First Class, Kullu, which had directed the petitioner-husband to pay a total of Rs. 3,500 as interim maintenance—comprising Rs. 2,000 for the wife and Rs. 1,500 for the minor child. Justice Verma noted that these amounts were "very reasonable" and did not warrant any interference at the interim stage. The Court emphasized that such arrangements are temporary and subject to the final outcome of the main case.

Husband’s Plea of Mental Incapacity Rejected

The petitioner-husband contended that he should not have been burdened with maintenance because his "mental state of mind" was not good. However, the High Court scrutinized the record and found that the husband had himself preferred the appeal before the Additional Sessions Judge and had personally signed the petition before the High Court. Consequently, the Court held that the contention regarding his mental incapacity was not sustainable at this stage.

"The contention of the present petitioner that he could not have been burdened with the interim maintenance is not sustainable."

Limited Scope of Article 227 Jurisdiction

A major portion of the judgment focused on the limits of the High Court’s supervisory powers. Citing the Supreme Court’s ruling in Radhey Shyam v. Chhabi Nath, the Court reiterated that judicial orders of Civil Courts are not amenable to writs under Article 226 but can be questioned under Article 227. However, this power must be used "sparingly" and only to keep subordinate courts within the bounds of their authority.

Court Is Not A Court Of First Appeal Under Article 227

Relying on the precedent in Garment Craft v. Prakash Chand Goel (2022), the Bench clarified that the High Court does not act as a court of first appeal to reappreciate or reweigh evidence under Article 227. The jurisdiction is correctional in nature, intended to set right grave dereliction of duty or flagrant abuse of law. The Court stated it cannot substitute its own decision for that of the inferior court unless the finding is so perverse that no reasonable person could arrive at it.

"High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court."

Final Directions and Preservation of Merits

The Court ultimately dismissed the petition, finding the orders of the Judicial Magistrate and the Additional Sessions Judge to be legal and valid. While dismissing the challenge, the Court clarified that any observations made in this judgment were only for the purpose of deciding the instant petition and should not be treated as an expression of opinion on the merits of the main case pending before the Trial Court.

The High Court affirmed the primacy of maternal custody for infants and strictly limited its own interference in interim domestic violence proceedings. By rejecting the husband's plea of mental incapacity based on his active participation in litigation, the Court ensured that the welfare of the child and the subsistence of the wife remained protected during the pendency of the main dispute.

Date of Decision: 23 April 2026