“Supreme Court Moves Custody Battle Closer to Mother — Husband Can’t Fight Case Until He Pays for His Child”

“Petition filed to harass the wife by seeking the custody of a breast-feeding baby” – In a strongly worded order protecting both a mother’s rights and a baby’s welfare, the Supreme Court transferred a guardianship case from Jalpaiguri, West Bengal, to Dehradun, Uttarakhand, where the mother resides with her six-month-old son.

The case was decided by a Bench of Justice Surya Kant, Justice Dipankar Datta and Justice Nongmeikapam Kotiswar Singh, which found that forcing the mother to travel hundreds of kilometres with a breast-feeding infant to contest proceedings “would result in grave hardship” and that the litigation appeared designed “to harass the petitioner-wife.”

The couple married in October 2022 and initially lived in Uttarakhand. Later, the husband moved to Jalpaiguri, allegedly compelling his wife to leave her job and join him. According to the wife, he then subjected her to harassment, sold her belongings, and forced her to return to her parental home while pregnant. She gave birth to their son in December 2024.

Two weeks later, she lodged a criminal complaint under the Dowry Prohibition Act and Sections 323, 498A and 504 IPC, leading to FIR No. 0164/2025. Against this backdrop, the husband filed a guardianship petition in Jalpaiguri under Section 12 of the Guardians and Wards Act, 1890 seeking custody of the baby.

The Supreme Court noted that no interim maintenance had ever been paid by the husband to his wife or child, remarking that the custody action itself appeared to be a pressure tactic. “The instant petition, prima facie, has been filed to harass the petitioner-wife by seeking the custody of a breast-feeding baby,” the order observed.

Transfer Granted — With a Financial Condition to Defend

Exercising its plenary powers under Article 142 of the Constitution, the Court ordered:

“Misc. Judicial Case No. 09 of 2025… pending before the Court of District Judge, Jalpaiguri… is ordered to be transferred to the Court of Principal Judge, Family Court, Dehradun, Uttarakhand.”

The Family Court in Dehradun must determine interim maintenance within one month, payable from the date the husband filed the custody petition. Crucially, the husband can only contest the custody case if he first pays the arrears and continues to pay maintenance by the 7th of each month. Failure to do so will lead to the case being dismissed “for non-prosecution.”

The Court clarified that fixing interim maintenance in this order would not prejudice the parties’ rights in separate proceedings under Section 125 Cr.P.C.

This ruling reinforces the principle that in custody disputes involving very young children, the welfare of the child is paramount, and that courts will not allow custody litigation to be weaponised in ongoing marital conflict. By tying the husband’s right to contest custody to his duty to maintain the child, the Court ensured that the child’s needs remain central while preventing unnecessary harassment of the mother.

Date of Decision: 31 July 2025