In child custody disputes, the welfare of the child is the paramount consideration. For children under five years of age, Section 6(a) of the Hindu Minority and Guardianship Act, 1956, creates a rebuttable presumption that custody should ordinarily remain with the mother.

ORDER :

ILESH J. VORA, J.

1. This Appeal has been filed by the appellants, challenging the order dated 23.09.2025 passed by the Family Court, Bhachau, Kutch in Misc. Civil Application No.5 of 2024, whereby the appellants – grand parents and uncle is directed that custody of minor child, aged about three years, be handed over to respondent – mother herein. At the same time, the Family Court further directed that the appellants herein shall have the visitation rights over the child.

2. Brief facts, giving rise to file present appeal are that; the marriage of the respondent with the son of the appellants solemnized on 18.11.2019. The mother respondent was living in Mumbai and after the marriage, she had lived in Mumbai. A boy Ansh – borne out of the wedlock at Mumbai. The appellants who are grand parents and uncle of the boy, is resident of Village Bhachau at Kutch. Unfortunately, the father of the boy had committed a suicide at Mumbai. Thereafter, the respondent mother and child Ansh came to Bhachau. However, differences arose between the appellants and respondent, as a result, she had left the Bhachau and she was not permitted by the appellants to carry with her the child aged about 1.5 years. She tried her level best to reconcile the issue and requested to give the custody of her child, but the grand parents and uncle, due to their sentiments, did not accept the request. In such circumstances, the respondent mother being a natural guardian of the child, sought custody of the child by filing applications under Section 25 of The Guardians and Wards Act, 1890, inter alia, stating that;

(i) That she being a mother, can have better competence to look after and take care of her child, who in a tender age needs love and affection of the mother and she is capable and competent for all respects taking care and requirement of the child;

(ii) That under the relevant statue the mother is recognised as the natural guardian of for children under age of 5 years and there is presumption that young child’s welfare is the best serve with the mother.

(iii) That the grand parents are retired persons. The grandmother having serious ailments, as a result, she cannot look after the day-today needs of the child including the education and other things for his growth. They have no any independent source of income. Thus, for the growth and education of the child, the grand parents and uncle having no any sufficient financial means and capacity to take proper care of the child in all respects.

(iv) That the uncle who is unmarried, is having limited source of income and during the day time, he is not available at home because of his service and therefore, his claim towards the child cannot be at all maintainable.

(v) That, due to serious differences with the in-laws, it is difficult for her to live at Bhachau as after death of her husband, she was subjected to harassment, as the appellants are only interested to keep the custody of child.

(vi) That, she had tried to get the custody of the child from the uncle and the grand parents through the community leader, however, the modalities could not be succeed and she was denied the entry into the house and not permitted to meet her child, which creates negative impact on the child.

In such circumstances, the respondent mother pleaded in her application that considering the tender age of the child, his emotional and psychological wellbeing is required to be maintained for which, the mother is the only person who provides stable love and conducive environment for the physical, moral development of the child and she can ensure the child’s health, safety, daily needs and moral upbringing and therefore, she had prayed in her application that the custody of the child be given to her.

3. The appellants had filed their objections to the mother’s application. They have denied the claim of the mother that the welfare of the child would be with the mother; that, the mother is living adulterous life and during the lifetime of the