The Bombay High Court has reaffirmed the statutory presumption in favor of the mother as the natural guardian of a child below five years of age, holding that prolonged physical custody by the father cannot override this presumption unless convincingly rebutted. The judgment underscores that the welfare of the child, not parental convenience or possession, must govern custody decisions under the Protection of Women from Domestic Violence Act and the Hindu Minority and Guardianship Act.
Background & Facts
The Dispute
The dispute centers on the interim custody of Bhim, a male child born on 10 May 2022, to petitioner No. 1 (father) and respondent (mother). The couple separated in September 2023, after which the mother returned to her parental home. On 13 November 2023, the father, accompanied by relatives, took the child from the mother’s residence. The mother alleges this was a forcible abduction; the father claims it was a voluntary handover.
Procedural History
- 16 December 2023: Mother filed a complaint with Bhagya Nagar Police Station alleging forcible removal of the child. No FIR was registered.
- 6 January 2024: Mother filed an application under Section 97 of the Code of Criminal Procedure seeking custody of the child. The application was dismissed on 19 August 2024 on technical grounds - lack of intent to commit an offence.
- 27 March 2024: Mother filed proceedings under the Protection of Women from Domestic Violence Act, 2005 against the father and his relatives.
- 28 February 2025: Judicial Magistrate First Class granted interim custody of the child to the mother under Section 21 of the D.V. Act.
- 25 August 2025: Additional Sessions Judge dismissed the father’s appeal, upholding the Magistrate’s order.
- 10 February 2026: Bombay High Court dismissed the writ petition challenging the above orders.
Relief Sought
The petitioners sought to set aside the interim custody order in favor of the mother and retain physical custody of the child, arguing that the child had been in their care for over a year and that the mother had abandoned him. They also sought to prevent the mother from invoking the D.V. Act as an alternative remedy.
The Legal Issue
The central question was whether the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which presumes the mother as the natural guardian of a child below five years, can be displaced by the father’s prolonged physical custody alone, or whether the burden remains on the father to prove that such custody is in the child’s welfare.
Arguments Presented
For the Appellant/Petitioner
The petitioners contended that the child had been in their continuous care for over 14 months and that the mother had voluntarily relinquished custody on 13 November 2023. They relied on Sumedha Nagpal v. State of Delhi, R.V. Shrinath Prasad v. Nandamuri, and Arun Sharma v. Roxanna Sharma to argue that long-term custody arrangements should not be disturbed absent clear evidence of unfitness. They further argued that Section 97 Cr.P.C. and Sections 10 and 11 of the CPC barred the mother from seeking custody under the D.V. Act, and that the Magistrate erred in ignoring the child’s settled environment.
For the Respondent/State
The respondent countered that the child was forcibly taken from her custody, and that the police had declined to act due to the father’s status as a natural guardian. She emphasized her employment as an Assistant Engineer with MSEB, her financial independence, and the child’s medical condition - bilateral severe hydronephrosis - requiring constant maternal care. She relied on Gaurav Nagpal v. Sumedha Nagpal and Roxann Sharma v. Arun Sharma to argue that the statutory presumption under Section 6(a) cannot be negated by mere possession, and that the father’s conduct in withholding custody constituted a wrong that cannot be rewarded.
The Court's Analysis
The Court conducted a meticulous review of the statutory framework under the Hindu Minority and Guardianship Act, 1956, particularly the proviso to Section 6(a), which states: "the custody of a minor who has not completed the age of five years shall ordinarily be with the mother." The Court emphasized that the word "ordinarily" creates a rebuttable presumption, placing the burden on the father to demonstrate that the mother’s custody is not in the child’s welfare.
"The use of the word 'ordinarily' cannot be overemphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of the word 'ordinarily'... The wisdom of Parliament or the legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment."
The Court rejected the petitioners’ argument that the child’s long stay with the father justified continued custody. Citing Gaurav Nagpal, it held that a parent cannot benefit from their own wrongful conduct - here, the alleged forcible removal of the child. The Court noted that the father had not produced any evidence of the mother’s unfitness, neglect, or incapacity. On the contrary, the mother was gainfully employed and capable of providing medical care for the child’s condition.
The Court also clarified that Section 21 of the D.V. Act is an independent remedy and not barred by the dismissal of the Section 97 Cr.P.C. application or by Sections 10 and 11 of the CPC. The Magistrate’s order was thus procedurally valid.
The Court further held that visitation rights granted to the father - Sundays and two additional days per month - adequately protected his emotional bond with the child, striking a fair balance between statutory presumption and parental rights.
The Verdict
The petitioners’ writ petition was dismissed. The Court upheld the interim custody order in favor of the mother under Section 21 of the D.V. Act, affirming that the statutory presumption in favor of the mother of a child under five years cannot be displaced by mere possession or duration of care. The father was directed to hand over custody within 15 days, with modified visitation rights.
What This Means For Similar Cases
The Presumption Is Rebuttable, Not Displaceable
- Practitioners must now argue that only affirmative evidence of maternal unfitness - not mere duration of custody - can overcome the statutory presumption under Section 6(a).
- Courts will not permit fathers to retain custody by default simply because the child has lived with them for months or years.
- Allegations of voluntary handover must be substantiated with contemporaneous documentation or witness testimony; unsupported claims will be rejected.
D.V. Act Is an Independent Remedy for Custody
- Applications under Section 21 of the D.V. Act are not barred by pending or dismissed Section 97 Cr.P.C. applications.
- Family courts and magistrates may grant interim custody under the D.V. Act even where criminal proceedings are pending or dismissed on technical grounds.
- This provides a faster, more accessible route for mothers seeking urgent custody relief without waiting for civil custody suits.
Medical Needs Amplify the Mother’s Presumed Suitability
- When a child has chronic medical conditions requiring consistent care, courts will weigh maternal availability and emotional bonding more heavily.
- Employment status and financial capacity of the mother are relevant factors that support, not undermine, the statutory presumption.
- Fathers must now proactively demonstrate how their care plan addresses the child’s medical needs to rebut the presumption.
