Court Emphasizes Paramount Welfare of Child, Rejects Alleged Compromise and Will, and Grants Grandmother Limited Visitation Rights During Transitional Phase
In a significant judgment delivered on 12th October 2026, the Allahabad High Court (Division Bench comprising Justice Saral Srivastava and Justice Siddharth Nandan) allowed an appeal filed by Smt. Sudha Tomar, the natural mother, granting her custody of her six-year-old son, Master Shreyansh Tomar, and set aside the earlier order which had refused her custody claim. The child had been living with his paternal grandmother, Smt. Shakuntala Devi, following the untimely death of his father, Saurabh Tomar, in September 2020.
The case emerged from a custody dispute where the grandmother claimed guardianship based on an alleged compromise and a Will purportedly executed by the deceased father in her favor. The mother contended that these documents were forged or unproved and asserted her natural right as the child's guardian.
The Court meticulously examined the facts and legal principles, holding that the mother, as the natural guardian, was entitled to custody of the minor child, especially given his tender age. It was noted that shortly after the father's demise, the child was kept away from the mother, and she was prevented from meeting him, raising serious concerns about the child's welfare and rights.
Rejecting the grandmother's claims, the Court observed that custody cannot be determined by private compromises or unproved Wills, especially when it concerns the welfare of a minor. The Court relied heavily on precedents, including the landmark judgment in Githa Hariharan v. Reserve Bank of India, which clarified the status of the mother as a natural guardian in the absence of the father.
Importantly, the Court declined to rely on the statement of the six-year-old child expressing a wish to stay with the grandmother, recognizing that a child of such tender age, who had never lived with the mother, was not capable of forming an intelligent or informed preference. The judgment referred to Supreme Court and High Court precedents cautioning courts against giving determinative weight to such preferences when children are too young or emotionally influenced.
The Court also balanced the financial capacities of both parties, noting that the mother possessed sufficient means and assets to care for the child, while the grandmother was financially dependent on her sons. Financial status was held not to be a decisive factor in denying custody to the mother.
Acknowledging the potential challenges in transitioning custody after several years with the grandmother, the Court instituted a phased visitation arrangement. The grandmother was granted visitation rights for one full day every week at the mother's residence for six months, followed by visitation every second weekend for the subsequent six months. The Court expressed hope that the familial differences would ease during this period to support the child's welfare.
This judgment reinforces the principle that the welfare of the child is paramount in custody disputes, particularly emphasizing the natural rights of the mother as guardian in the absence of the father. It also highlights the judiciary's cautious approach towards child testimony in custody cases involving young children and the inadmissibility of private agreements that undermine natural guardianship rights.
Bottom Line:
Guardians and Wards Act - Custody of minor child - Between natural mother and grandmother, custody of six-year-old child held to be best with mother, father having died - Alleged compromise and Will in favour of grandmother held irrelevant/unproved - Child of tender age not capable of giving intelligent preference - Welfare of child is paramount - Grandmother granted visitation rights during transitional period.
Statutory provision(s):
Guardians and Wards Act, 1890 Sections 7, 25, 47; Family Courts Act, 1984 Section 19; Hindu Minority and Guardianship Act, 1956 Sections 4(b), 4(c), 6(a)
Sudha Tomar v. Shakuntala Devi, (Allahabad)(DB) : Law Finder Doc Id # 2995441
