The Allahabad High Court has set aside a family court order granting custody of a minor child to his father, holding that the welfare of the child is the paramount consideration under Section 25 of the Guardians and Wards Act, 1890 and cannot be subordinated to parental rights or financial status. The Division Bench found that the father had wilfully flouted multiple court orders, entered into a second marriage during the subsistence of the first, and evaded judicial process, while the trial court denied the mother custody solely on the ground of her financial dependence without affording her the opportunity to cross-examine the father.
Background & Facts
The Dispute
The appellant, Preeti Sharma, and the respondent, Praveen Prakash Sharma, were married on 19.02.2007 at Village Mohalla Nuaon Tandiya, Post Dafee, Tehsil and District Varanasi, in accordance with Hindu rituals. After marriage, the parties resided at Sector-16-C, Greater Noida, in a house owned by the respondent's mother. Two sons were born of the wedlock: Yathartha Sharma (born 23.05.2011) and Aniket @ Samartha Sharma (born 02.06.2013). The present appeal concerns the custody of the elder son, Master Yathartha Sharma.
Key Facts
- On 03.04.2016, the respondent left the appellant at her parental house in Varanasi and took away the elder son, Master Yathartha Sharma, effectively abandoning his wife and younger son.
- The respondent filed a divorce petition, Case No. 246 of 2016 (Praveen vs. Preeti), under Section 13 of the Hindu Marriage Act, 1955. The appellant and her family attempted reconciliation and filed a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955.
- The divorce petition was dismissed and the suit for restitution of conjugal rights was allowed on 15.12.2022. Despite the decree, the respondent did not take the appellant back to the matrimonial home.
- Without obtaining a decree of divorce, the respondent entered into a marriage with Ms. Sumanlata Sharma, which the appellant contended was void in view of the subsisting marriage.
- The appellant alleged that the respondent was avoiding responsibility towards his wife and minor son. She further submitted that during a brief meeting at school, Master Yathartha Sharma informed her that he was not being treated well by the respondent's partner, who made him run daily chores and did not provide a conducive environment.
- The respondent resided at Gautam Budh Nagar while working in Bengaluru. During vacations, the respondent and the child visited their ancestral home in Azamgarh, but Ms. Sumanlata Sharma did not accompany them.
- The impugned judgment dated 23.07.2024 granted visitation rights to the appellant, but she was not permitted even a single visit. The respondent left his address in December 2024 without disclosing his present whereabouts.
- The respondent did not lead any evidence beyond his affidavit and did not enter the witness box for cross-examination. The opportunity to adduce evidence was closed by the trial court on 22.05.2024 due to the respondent's lapses.
- The appellant's father-in-law remained in touch with her and informed her that the respondent regularly visited the parental house, yet he refused to accept notice on the respondent's behalf.
Procedural History
- 2017: Suit No. 44 of 2017 filed by the appellant (Preeti Sharma vs. Praveen Prakash Sharma) before the Family Court, Azamgarh, under Section 25 of the Guardians and Wards Act, 1890, seeking custody of the minor son.
- 19.01.2023: Trial court directed proceedings to continue ex-parte against the respondent.
- 22.01.2023: Respondent's recall application allowed with a cost of Rs. 5,000.
- 22.05.2024: Trial court closed the respondent's opportunity to adduce evidence.
- 23.07.2024: Additional Principal Judge, Family Court No. 1, Azamgarh, passed the impugned judgment dismissing the appellant's suit and granting custody to the respondent.
- 2024: First Appeal No. 895 of 2024 filed before the Allahabad High Court under Section 19 of the Family Courts Act read with Section 47 of the Guardians and Wards Act, 1890.
- 19.09.2024: High Court referred the matter to the Mediation Centre. The respondent did not appear despite multiple dates; mediation failed, report submitted on 08.11.2024.
- 12.12.2024: High Court permitted incorporation of alternative address for service.
- 07.08.2026: Report from C.J.M., Gautam Budh Nagar, indicating respondent resided at given address from 25.09.2022 to 24.12.2024 but had left without forwarding address.
- 07.09.2026: High Court issued notice through C.J.M., Azamgarh, at respondent's permanent address.
- 03.10.2026: Report from C.J.M., Azamgarh, stating respondent's father refused to accept notice.
- 09.10.2026: Judgment reserved.
- 26.10.2026: Judgment delivered.
Relief Sought
The appellant sought setting aside of the judgment and order dated 23.07.2024, grant of custody of Master Yathartha Sharma, and enforcement of visitation rights. She also highlighted that no maintenance had been paid by the respondent for the wife and the younger son living with her.
The Legal Issue
The central questions were: (1) Whether the welfare of the minor child, as the paramount consideration under Section 25 of the Guardians and Wards Act, 1890, was properly assessed by the trial court; (2) Whether the trial court erred in granting custody to the father despite his wilful non-compliance with court orders, second marriage during subsistence of the first marriage, and evasion of judicial process; (3) Whether the mother's financial dependence on her retired father could be the sole ground for denying custody; and (4) Whether the denial of the right to cross-examine the respondent violated principles of natural justice.
Arguments Presented
For the Appellant
Shri Pankaj Govil, Advocate, submitted that the respondent had abandoned the appellant and the younger son in April 2016, took away the elder son, and filed a divorce petition which was dismissed. The suit for restitution of conjugal rights was decreed in the appellant's favour, yet the respondent did not comply. The respondent contracted a second marriage with Ms. Sumanlata Sharma without a divorce decree. The appellant was granted visitation rights by the impugned judgment but was not permitted a single visit. The respondent evaded service of notices, changed addresses, and did not appear before the Mediation Centre. The trial court granted custody to the respondent solely on the ground that the appellant had no independent income and was dependent on her retired father, overlooking the father's statutory duty to maintain the wife and children. The appellant was not afforded the opportunity to cross-examine the respondent, who did not enter the witness box. The trial court relied solely on the respondent's affidavit without any corroborating evidence regarding the child's welfare, education, or the respondent's income.
For the Respondent
Despite sufficient notice, no one appeared on behalf of the respondent. The respondent did not participate in the appeal proceedings, evaded service of notices through the Mediation Centre, C.J.M. Gautam Budh Nagar, and C.J.M. Azamgarh. The respondent's father refused to accept notice on his behalf. The respondent did not file any counter-affidavit or written submissions in the appeal.
The Court's Analysis
The Court began by reproducing Section 25 of the Guardians and Wards Act, 1890, emphasizing that the phrase "welfare of the ward" is the sine qua non for determination of custody, not the rights of the parents. The Court held that a holistic and mature view is required to determine what ensures the child's normal, balanced growth in a conducive environment.
The Court relied on Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673, where the Supreme Court held that no statute can ignore the vital factor of the welfare of the minor. The principles from Halsbury's Laws of England (4th Edn., Vol. 13) were cited: the welfare of the minor is the first and paramount consideration, and the court must not consider whether the father's claim is superior to the mother's or vice versa; the rights and authority of mother and father are equal.
The Court further relied on Sheoli Hati v. Somnath Das, (2019) 7 SCC 490 and Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, reiterating that "welfare of the child" is of paramount consideration. In Gaurav Nagpal, the Supreme Court held that the word "welfare" must be construed in its widest sense, encompassing moral and ethical welfare alongside physical well-being. The Court quoted the critical observation: "By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of the child. He cannot be a beneficiary of his own wrongs."
The Court found that the respondent had not adhered to the decree for restitution of conjugal rights, had entered into a second marriage during the subsistence of the first, and had openly flouted the visitation rights granted by the impugned judgment. The respondent evaded service of notices, changed addresses, and did not appear before the Mediation Centre. The trial court overlooked these facts while deciding custody.
On the issue of the mother's financial status, the Court held that the trial court could not refuse custody solely because the appellant had no independent income and was dependent on her retired father. Citing Gaurav Nagpal and Mausami Moitra Ganguli, the Court stated that better financial resources of either parent cannot be the sole determining factor. The father's obligation to maintain the wife and children is a bounden duty, as affirmed in Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705, where the Supreme Court held that an able-bodied husband cannot plead inability to maintain due to financial constraints.
The Court strongly condemned the trial court's reliance on the respondent's affidavit without affording the appellant the right to cross-examine. Citing Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, the Court held that cross-examination is an integral part of the principles of natural justice. Section 14 of the Family Courts Act, 1984, which relaxes strict rules of evidence, does not absolve the Family Court from observing fundamental rules of proof and natural justice. The examination-in-chief of a party cannot be relied upon in the absence of cross-examination.
The Court also considered the respondent's second marriage as a significant factor. Relying on Athar Hussain v. Syed Siraj Ahmed, the Court observed that placing the child in a predicament of adjusting with a stepmother, with whom the child had not spent much time, is inappropriate when the guardianship proceedings' outcome is uncertain.
"The welfare of the minor being of paramount importance while deciding the question of custody, the question that remains is as to whether the father-respondent, who from the record has openly been flouting the orders passed by the learned Courts below, evading the due process of law and is in a relationship and living with another woman, despite being refused divorce and no proof of income of the respondent and well being of the minor being on record, would be a suitable parent to take care of the welfare of the minor, or the mother-appellant, where the minor would grow up with his mother, younger brother and maternal grandparents, may be with lesser physical comforts but definitely better moral and ethical values."
The Verdict
The appeal was allowed. The judgment and order dated 23.07.2024 passed by the Additional Principal Judge, Family Court No. 1, Azamgarh, in Case No. 44 of 2017, was set aside. The respondent was directed to hand over the custody of the minor child, Master Yathartha Sharma, to the appellant within a period of one month from the date of judgment. The respondent was granted visitation rights to meet the minor every Saturday between 3:00 P.M. to 5:00 P.M. in the premises of the District Legal Services Authority (DLSA), Varanasi. The parties were given liberty to approach the trial court for any modification of visitation rights.
What This Means For Similar Cases
Welfare of Child Trumps Parental Conduct and Financial Disparity
The judgment reinforces that the welfare of the child is the sole paramount consideration under Section 25 of the Guardians and Wards Act, 1890 and Section 13 of the Hindu Minority and Guardianship Act, 1956. A parent's superior financial status cannot outweigh the child's moral, ethical, and emotional welfare. Practitioners must argue that financial disparity is a factor, not a determinant, and that the court can order the financially stronger parent to bear educational and maintenance expenses while granting custody to the other parent.
A Parent Cannot Benefit from Their Own Wrongs
The Court's reliance on Gaurav Nagpal establishes that a parent who flouts court orders, evades judicial process, and secures custody through delay tactics cannot be rewarded. Lawyers should meticulously document every instance of non-compliance with court orders, evasion of service, and failure to participate in proceedings. Such conduct directly bears on the parent's suitability and the child's welfare.
Natural Justice in Family Courts Is Non-Negotiable
Despite Section 14 of the Family Courts Act, 1984 relaxing evidentiary rules, the fundamental right to cross-examination remains inviolable. The judgment makes clear that an affidavit cannot be treated as gospel truth without cross-examination. Practitioners must insist on the right to cross-examine the opposing party and object to any order that closes evidence without affording this opportunity. Denial of cross-examination is a violation of natural justice rendering the decision perverse.
Second Marriage During Subsistence of First Marriage Is a Material Factor
The Court treated the father's second marriage without a divorce decree as a significant factor against granting custody. This aligns with the principle that the child's environment must be stable and morally conducive. In custody disputes, evidence of a parent's bigamous relationship or cohabitation without legal sanction should be prominently pleaded as it impacts the child's moral and ethical welfare.
- Actionable Takeaway: In custody petitions, file a detailed affidavit cataloguing the other parent's non-compliance with court orders, evasion of process, and any subsequent relationships. Seek specific directions for maintenance and educational expenses from the non-custodial parent.
- Actionable Takeaway: If the trial court denies cross-examination, file an immediate revision or appeal highlighting the violation of natural justice under Ayaaubkhan Noorkhan Pathan.
- Actionable Takeaway: Argue for visitation at a neutral, supervised venue (like DLSA) when the non-custodial parent has a history of non-compliance.
