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by sayum
07 July 2026 3:12 PM
“The father, though not unfit, failed the positive test of suitability—welfare is not presumed, it must be proven,” ruled the Orissa High Court while rejecting the custody plea of a natural father under the Guardians and Wards Act, 1890. The Court held that a biological relationship cannot override the settled welfare and emotional stability of a child who has known only his maternal grandparents as caregivers since birth.
Justice G. Satapathy, sitting in Civil Appellate Jurisdiction in GUAP No. 13 of 2024, dismissed the father’s appeal under Section 47 of the Guardians and Wards Act, seeking to overturn the Family Court’s denial of custody. The High Court, while upholding custody with the maternal grandfather, allowed expanded visitation rights to the appellant-father, recognising his right to a meaningful relationship with his son, but not at the cost of the child’s current wellbeing.
“A Child Is Not an Object to Be Tossed Between Contesting Adults”: Welfare, Not Biology, Is the Beacon
The Court’s central observation, steeped in child-centric jurisprudence, was resoundingly clear: “In custody matters, the child is not a trophy to be won, but a soul to be nurtured.” While the father’s right as a natural guardian under Section 13 of the Hindu Minority and Guardianship Act, 1956 was acknowledged, it was held to be subordinate to the paramount consideration of the child’s welfare under Section 17 of the Guardians and Wards Act.
The child in question, born in September 2014, had been in the uninterrupted custody of his maternal grandparents and maternal uncle since birth—save for a brief three-month interlude in 2017 when, pursuant to a compromise agreement, custody was handed to the father. The child was then allegedly removed again by the maternal relatives and has since remained with them.
The Court rejected the argument that biological fatherhood inherently entitled custody, quoting Nil Ratan Kundu v. Abhijit Kundu:
“It is not the ‘negative test’ that the father is not unfit or disqualified... but the ‘positive test’ that such custody would be in the welfare of the minor which is material.”
Justice Satapathy emphasised that the test is not whether the father is fit, but whether his custody would advance the child’s physical, emotional, moral and intellectual development better than the existing custodians.
“If the Child Is Old Enough to Form an Intelligent Preference, It Must Be Respected”: Court Backs Minor’s Bond With Maternal Kin
Drawing upon Section 17(3) of the Guardians and Wards Act, which permits courts to consider the child’s preference if the minor is mature enough, the High Court gave considerable weight to the trial court’s personal interaction with the child.
The Family Court had found that the child, now nearly 11, not only failed to recognise his father but also expressed a clear unwillingness to live with him. Justice Satapathy observed:
“The child appeared more mature than his age and expressly stated that he is not willing to live with his father.”
The Court rejected the father’s contention that the child’s wishes were irrelevant due to his young age, noting that the child's long-settled emotional, social and educational environment with his maternal relatives offered greater stability, familiarity and nurturing care. Quoting the Supreme Court in Col. Ramneesh Pal Singh v. Sugandhi Aggarwal, the Court observed:
“The stability of surroundings of the minor children is also a consideration to be weighed appropriately.”
“Compromise Agreements May Resolve Disputes Between Adults, But Not the Child’s Welfare”: Past Arrangements Not Binding
The Court found that while the custody was once transferred to the father through a 2016 compromise agreement, that arrangement was neither permanent nor indicative of the child's best interests. The agreement had broken down almost immediately, and the child was returned to his maternal family within three months. Justice Satapathy stated:
“The compromise agreement is not determinative of current welfare needs.”
Thus, the past handover and brief stay with the father could not be treated as establishing a meaningful parental bond, especially where the child’s present well-being was demonstrably tied to the environment and care provided by the maternal grandparents.
“Custody May Remain With Grandparents, But Fatherly Love Cannot Be Denied”: Court Expands Visitation to Promote Emotional Bonding
Acknowledging that the father deserves an opportunity to build a relationship with his child, the Court modified the Family Court’s visitation orders, allowing for structured vacation access. The judgment stated:
“The child must be given some opportunity to familiarize and develop an emotional bonding with meaningful relationship with his father.”
The High Court permitted the father to take the child for vacation outings during Puja, Winter, and Summer holidays for a period of up to seven days, extendable to fifteen, subject to the child’s willingness. Tour plans must be communicated in advance, and the grandparents may accompany the child during initial trips if the child so wishes.
Importantly, the Court clarified that custody would continue with the maternal grandfather (Respondent No.1) until the child attains majority, at which point the child would be free to choose with whom to reside.
In a case steeped in tragedy, legal complexity and emotional nuance, the Orissa High Court has drawn a clear line between legal guardianship and lived welfare, refusing to prioritise biological rights over actual emotional and developmental security of a child. The judgment is a testament to the principle that the child's best interests remain the guiding star, even if it means limiting the role of a natural parent until the child is ready.
The Court’s decision is grounded not in formality but in compassion, legality and wisdom. It sends a strong message that custody cannot be claimed—it must be earned, and justified in the eyes of the child’s best future.
Date of Decision: 23 October 2025
