The Allahabad High Court has reaffirmed that the welfare of the child is the paramount consideration in custody disputes, even where divorce decrees appear to assign exclusive custody to one parent. In a habeas corpus petition involving an eight-year-old girl, the Court rejected allegations of abuse as tutored and instead emphasized the child’s right to maintain meaningful emotional ties with both parents.
Background & Facts
The Dispute
The habeas corpus petition was filed by Km. Istika, a minor aged approximately eight years, through her next friend, seeking her production before the Court amid allegations that she was being wrongfully detained by her paternal family. The petitioner, Abhilash Mohta, is the father of the minor, while the first respondent, Smt. Shruti Mohta, is the mother and legal custodian following a divorce. The private respondents Nos. 4 to 6 include the paternal grandmother, Smt. Indra Devi, and paternal aunt, Smt. Sapna Jajoo, who sought temporary custody during school holidays.
Key Facts
- The minor, Km. Istika, is a student of Class III in a school in Bareilly
- The parents’ marriage was dissolved by a divorce decree dated 10.03.2026, passed by the Principal Judge, Family Court, Bareilly under Section 13-B of the Hindu Marriage Act, 1955
- A settlement was recorded before the High Court Mediation Centre on 09.07.2025, but custody of the child was not conclusively determined
- The Family Court’s divorce order dated 10.03.2026 noted that the father had agreed the child would remain with the mother, but did not extinguish his parental rights
- The paternal grandmother and aunt asserted they had previously cared for the child two years prior and wished to do so again during vacation periods
- Smt. Sapna Jajoo, the paternal aunt, runs an educational institution in Charama, District Kanker, Chhattisgarh, educating approximately 700 students up to Class XII
- The father, Abhilash Mohta, has offered to reside with the child during vacation periods to strengthen their bond
Procedural History
- 09.07.2025: Settlement recorded at High Court Mediation Centre; custody not resolved
- 10.03.2026: Divorce decree passed by Family Court, Bareilly, noting father’s agreement to mother’s custody
- 27.04.2026: High Court issued order directing production of the minor
- 28.04.2026: Smt. Shruti Mohta produced the child before the Court
- 03.05.2026: Court conducted private interaction with the minor, grandmother, and aunt
- 06.05.2026: Final hearing and disposal of the petition
Relief Sought
The petition sought the release of the minor from alleged unlawful detention by the paternal family and her return to maternal custody. The father, through the petition, sought recognition of his right to temporary custody during school holidays.
The Legal Issue
The central question was whether a parent’s right to temporary custody and access during school vacations is extinguished merely because a divorce decree records an agreement that the child shall reside with the other parent.
Arguments Presented
For the Petitioner
The father’s counsel argued that the divorce decree did not constitute a final order on custody but merely reflected a temporary arrangement. He relied on the principle that both parents retain natural rights to companionship and access, and that denying the father any role during holidays would harm the child’s emotional development. He emphasized the child’s expressed comfort with her paternal family and the absence of credible evidence of abuse.
For the Respondent
The mother’s counsel contended that the Family Court’s observation in the divorce decree amounted to a binding determination that the child would remain in her custody. He argued that any deviation from this arrangement would undermine judicial finality and expose the child to instability. He also raised concerns about the child’s alleged psychological trauma from interactions with the paternal side.
The Court's Analysis
The Court conducted a sensitive and thorough interaction with the minor, observing her demeanor, responses, and emotional cues. It found that the child’s allegations of assault by the father, grandmother, and aunt were inconsistent with her natural behavior and appeared to be the result of coaching by the mother. The Court noted that the child displayed warmth and familiarity with her paternal relatives, particularly her aunt and grandmother.
"The corpus appears to be substantially tutored and is merely reiterating what has been inculcated in her by her mother, rather than expressing her independent volition."
The Court further examined the conduct of the paternal family, noting their genuine affection and the stable environment provided by Smt. Sapna Jajoo’s educational institution. It held that the Family Court’s observation regarding custody was not a final adjudication but a procedural note, and could not override the child’s right to maintain a relationship with both parents.
The Court emphasized that the welfare of the child is the supreme consideration under Section 13 of the Hindu Marriage Act, 1955, and that this includes the right to emotional bonding with both parents. It rejected the notion that custody is a zero-sum arrangement and affirmed that temporary access during holidays is not a privilege to be granted, but a right to be protected.
The Verdict
The petition was disposed of with directions. The father, Abhilash Mohta, is entitled to temporary custody of Km. Istika during all school vacations and holidays, upon prior intimation to the mother, Smt. Shruti Mohta. The child shall be returned to the mother’s custody upon conclusion of the vacation period. Both parties are directed to facilitate telephone, mobile, or internet-based communication between the child and the non-custodial parent. No obstruction to such contact shall be permitted. The schedule of school holidays shall be shared by the mother to the father in advance.
What This Means For Similar Cases
Access Is a Right, Not a Privilege
- Practitioners must argue that custody orders under Section 13-B do not extinguish parental access rights during holidays
- Courts must assess the child’s emotional needs, not just formal agreements
- Any restriction on access must be justified by concrete evidence of harm, not mere allegations
Tutored Testimony Cannot Override Welfare Assessment
- Courts must conduct private, sensitive interactions with minors to detect coaching or manipulation
- Allegations of abuse by children must be evaluated for authenticity, not accepted at face value
- Psychological evaluations may be necessary where tutoring is suspected
Paternal Family Can Be a Stable Environment
- Non-parental relatives (grandparents, aunts) may be entrusted with temporary custody if they provide a nurturing environment
- Professional or institutional settings (e.g., schools run by relatives) can be considered in welfare assessments
- The father’s willingness to reside with the child during holidays strengthens his claim to access
