Yogesh Chawla vs Tanuja Jain Chawla

DEEPAK GUPTA, J.

The petitioner-father has approached this Court assailing the order dated 17.08.2026 passed by the learned Additional Principal Judge, Family Court, Dera Bassi, whereby the application filed by the respondent-mother under Section 12 of the Guardians and Wards Act, 1890, seeking interim custody of minor daughter Mishika Chawla, has been allowed.

The respondent-mother is on caveat and has entered appearance through counsel.

Learned counsel for the petitioner has contended that the learned Family Court has failed to appreciate that the minor had been residing with the petitioner-father and was being properly looked after by him. It has further been argued that the petitioner is providing the minor a stable environment, including education and other facilities, whereas the respondent is a working lady and would not be in a position to personally attend to the minor. Reference has also been made to the allegations that the respondent had, on an earlier occasion, physically assaulted the minor, pursuant to which the petitioner had taken the child for medical examination. It is, thus, submitted that the existing arrangement ought not to have been disturbed at the interim stage.

Learned counsel appearing for the respondent-caveator, on the other hand, submits that the impugned order dated 17.08.2026 is based upon a proper appreciation of the material available before the learned Family Court. It is submitted that the minor was born on 13.09.2023 and is, therefore, still of very tender age. The respondent-mother has been the primary caregiver since the birth of the child and there is no material on record showing that she is unfit to have the interim custody of the minor. It is further submitted that the allegations levelled by the petitioner are seriously disputed and cannot be made the basis for denying custody to the mother without evidence being led by the parties.

This Court has considered the rival submissions and perused the impugned order as well as the material placed on record.

The jurisdiction in matters relating to custody of a minor is required to be exercised keeping in view the welfare and best interest of the child as the paramount consideration. The rights of the parents, though relevant, cannot take precedence over the welfare of the minor. The Hon’ble Supreme Court has consistently reiterated that the welfare of the child has to be understood in its widest sense, encompassing physical, emotional, educational, psychological and overall well-being. Reliance may be placed on Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673; and Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.

In the present case, the minor daughter was born on 13.09.2023 and is, therefore, presently about three years of age. Section 6 of the Hindu Minority and Guardianship Act, 1956, while recognising the father as the natural guardian and the mother thereafter, specifically provides that the custody of a minor, who has not completed the age of five years shall ordinarily be with the mother.

The expression "ordinarily", undoubtedly, does not make the provision absolute. It cannot be understood as dispensing with the paramount consideration of the welfare of the child. At the same time, where no compelling circumstance demonstrating the mother's unfitness is shown, the tender age of the child is certainly a relevant and weighty consideration. The Hon’ble Supreme Court in Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318, has recognised the significance of the statutory preference regarding custody of a child below five years of age.

In the present case, the petitioner has alleged that the respondent had physically assaulted the minor on one occasion. The respondent has denied the allegation and has stated that the minor was suffering from an allergy, which had resulted in the injuries/bruises noticed on her body. The learned Family Court has rightly noticed that this is a disputed question of fact, which would require evidence. The impugned order dated 17.08.2026 records that both sides have levelled allegations and counter-allegations against each other and that the truth thereof can be determined only after the respective evidence is brought on record.

At the interim stage, this Court would be slow to record a finding of unfitness against either parent on the basis of disputed allegations, which have yet to be tested by evidence. Significantly, apart from the aforesaid disputed incident, no material has been brought to the notice of this Court which, even prima facie, establishes that the respondent-mother is incapable of taking care of the minor or that her custody would be detrimental to the welfare of the child.

Equally, the fact that the petitioner-father may have better financial resources, or may have been looking after the child during the period when the parties were residing separately cannot, by itself, be determinative of the question of custody. Financial capacity is only one of the factors, which may be taken into consideration. It cannot substitute the emotional, psychological and developmental needs of a child of such tender age. The Hon’ble Supreme Court has repeatedly cautioned that custody cannot be determined merely on the basis of the comparative financial position of the parents. See Mausami Moitra Ganguli (supra).

The contention regarding the respondent being a working lady also does not, by itself, disqualify her from having custody of the minor. In the present day, the fact that a mother is employed cannot be treated as a circumstance establishing her inability to care for her child. The Court is required to examine the totality of circumstances and not proceed on stereotypical assumptions regarding the role of a working mother.

At the same time, this Court cannot lose sight of the fact that the minor has been residing with the petitioner for some time. The learned Family Court has considered this aspect as well. It has noticed that the child has remained separated from the mother for a considerable period and that the mother had been meeting the child during the pendency of the proceedings. The Court has, thereafter, reached the conclusion that, having regard to the tender age of the child and the material presently available, interim custody should be with the mother, subject to the final adjudication of the main proceedings.

This Court finds no jurisdictional error or perversity in the aforesaid approach. The order under challenge is an interlocutory arrangement and cannot be tested as though the learned Family Court has finally adjudicated the rival claims of the parents. Indeed, the Family Court has itself expressly clarified that the findings recorded for the purpose of the interim application shall have no bearing upon the merits of the main case.

There is another important aspect. While entrusting interim custody to the mother, the learned Family Court has not sought to exclude the father from the life of the child. On the contrary, the petitioner-father has been granted visitation every Sunday from 9.00 a.m. to 7.00 p.m. at a public place having CCTV coverage, besides permitting him to communicate with the minor through video calls on alternate days. The parties have also been directed to exchange their e-mail addresses and WhatsApp numbers for coordination regarding the visitation.

Such an arrangement is consistent with the principle that a child of tender age ordinarily requires the love, affection, care and company of both parents. The Hon’ble Supreme Court in Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, has emphasised that even where custody is entrusted to one parent, the other parent should ordinarily be afforded meaningful visitation so that the child does not lose the bond with that parent. A child cannot be treated as an object to be passed from one parent to another merely because the parents are in conflict.

The direction issued by the learned Family Court regarding visitation, therefore, strikes a reasonable balance between the competing considerations. The father's relationship with the minor is required to be preserved and nurtured, while at the same time the child, being below five years of age and there being no prima facie material establishing the mother's unfitness, can appropriately remain in her interim custody.

This Court is also conscious that the learned Family Court has made certain observations regarding the emotional and psychological needs of a girl child and the role of the mother. Those observations may not be understood as laying down any inflexible proposition that a girl child must invariably remain with the mother. The governing principle continues to be the welfare of the particular child in the circumstances of the particular case. In the present case, however, when those observations are to be read in the context of the child's tender age, absence of any established unfitness of the mother and the disputed nature of the allegations against her, the ultimate conclusion reached by the learned Family Court does not call for interference.

The jurisdiction of this Court at this stage is not to undertake a fresh and exhaustive evaluation of disputed questions of fact or to substitute its own view merely because another view may also be possible. Unless the impugned interim arrangement is shown to be arbitrary, perverse, based on irrelevant considerations or demonstrably contrary to the welfare of the minor, interference would not be warranted.

In view of the aforesaid discussion, this Court finds no ground to interfere with the impugned order dated 17.08.2026. Consequently, the present revision petition is dismissed.

It is, however, clarified that the observations made herein are confined strictly to the question of interim custody and shall not influence the learned Family Court while adjudicating the main petition on merits. The learned Family Court shall independently assess the evidence which may be led by both parties, including their respective allegations regarding the care and treatment of the minor.

Since the minor is of tender age and the custody proceedings concern the welfare of the child, the learned Family Court shall make every endeavour to proceed with the main petition expeditiously, without granting unnecessary adjournments.

The petitioner-father shall continue to have the visitation rights granted by the learned Family Court. Both parents are expected to ensure that the minor is not exposed to their matrimonial disputes and that the child is encouraged to maintain a healthy and affectionate relationship with the other parent. Neither parent shall make any attempt to alienate the child from the other parent.

Revision petition stands dismissed in the above terms.