Mother can’t be denied custody of child, even if earlier given to father: Allahabad HC

The Allahabad high court has held that merely because the mother had been deprived of the company of her daughter at the time when the couple separated and the fact that the daughter continued to be in the father’s company for sometime itself would not be a sufficient circumstance to deny custody of the minor to the mother who is her natural guardian.

Dismissing the first appeal filed by one Amit Dhama of Meerut, a division bench comprising Justice Ashwani Kumar Mishra and Justice Donadi Ramesh said: “Merely because the mother has been deprived of the company of her daughter at the time when the couple separated and the fact that the daughter had continued to be in company of the father for sometime itself would not be sufficient circumstance to deny custody of the minor daughter to the mother who is her natural guardian. Various physical, emotional and psychological needs of the four-year-old daughter would be better protected in the care and custody of her mother.”

The father-appellant, Amit Dhama, approached the high court against the order of the family court dated August 31, 2024, granting ex-parte custody of the four-year-old daughter to the mother-respondent. It was pleaded that the father was taking care of the daughter and there was no need to give her custody to the mother.

However, the court observed that the parties were married in 2010 and have a son and a daughter.

The husband had filed a divorce petition wherein the wife filed for custody of the daughter. It was observed that the son was studying in a boarding school, and the father was paying expenses while the daughter was living with the father.

“Admittedly, the mother is the natural guardian of a minor child below five years of age and ordinarily, she would be allowed to have the custody of her minor child, unless, for specific reasons, a different course is warranted. It is otherwise settled that in the matter of child custody, the primary concern is the welfare and well-being of the child.”

Noting that both parents were given visitation rights, the court in its order dated January 10, dismissed the appeal filed by the father.