Calling the child intelligent, cheerful and cooperative, the Jammu and Kashmir and Ladakh High Court has restored a six-year-old girl’s interim custody to her mother, setting aside a trial court order had granted custody to the father based on his claim that the mother had raised false marital rape allegations against him in a bid to secure custody.
Hearing the custody matter, Justice Sanjay Parihar said frequent or abrupt changes in a child’s custody, unless dictated by compelling circumstances, are ordinarily discouraged, as they may adversely impact the child’s emotional and psychological development. The court observed that the child’s tender age, need for a sense of safety and emotional stability matter more than the competing claims of parents against each other.
“The interaction of this court with the minor child also assumes relevance. Though the wishes of a child of about six years cannot be regarded as conclusive, such interaction enables the court to assess the child’s emotional comfort, sense of security and overall well-being,” the July 2 order said.
The bench added that at such a formative stage of life, continuity of care, emotional stability, educational consistency and a nurturing environment assume considerable significance for a minor.
Marriage, disputes, custody fight
The man and woman met in 2013 and married according to Hindu rites in 2015 at an Arya Samaj Mandir and also held a Nikah ceremony as per Islamic rites in 2019. They lived together until 2023, when matrimonial disputes arose, leading to a custody battle over their daughter.
Justice Sanjay Parihar said the trial court appeared to have been considerably influenced by the mother’s FIR alleging marital rape.
Owing to the matrimonial discord, they eventually initiated multiple legal proceedings against one another. The dispute further escalated when the woman lodged a First Information Report (FIR) on October 20, 2024, alleging marital rape.
The woman said their daughter had been residing with her, but apprehending that the husband would forcibly remove the child from her custody, she filed a petition under the Guardians and Wards Act on May 31, 2024, seeking to be appointed as the girl’s guardian.
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On August 14, 2024, the father is alleged to have forcibly removed the girl from the mother’s custody and concealed the whereabouts of the child. After the mother filed an FIR, the police located the child and produced her before the Child Welfare Committee (CWC), which restored the girl’s custody to the mother on November 8, 2024.
On August 28, 2025, a trial court held that the man, being the natural father of the minor child, had prima facie demonstrated that the mother had obtained custody by misrepresentation and by abusing the process of law. It then directed that interim custody of the child be given to the father. However, the mother was granted visitation rights.
Mother vs father
Advocate Shayaan Chouhan, representing the mother, argued that the trial court proceeded on the wrong assumption that she had levelled false allegations against her husband and obtained custody of the child.
He pointed out that it was the CWC that restored the child’s custody to the mother after interacting with the girl and being satisfied that she was comfortable and happy in her mother’s company. The counsel said the trial court had failed to give due weight to the child’s gender, tender age and welfare.
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The trial court, he said, was unduly influenced by the allegations exchanged between the parties though there was no evidence to show that the mother had instituted a false criminal case.
Advocate Virendra Dev Singh, the father’s counsel, argued that he had married the woman though she was a divorcee with a child from her previous marriage and alleged that she succeeded in obtaining custody of their daughter under the guise of the marital rape allegation.
Child welfare over parental allegations
- In child custody matters, the court is not expected to determine the rights and liabilities of the parents as if deciding on their matrimonial disputes, the high court observed.
- The allegations and counter-allegations cannot be the only basis for determining interim custody. The main consideration, at every stage, is the welfare and best interests of the child.
- The trial court appears to have been considerably influenced by the woman’s FIR alleging marital rape. It overlooked the question as to whether transferring the six-year-old’s custody during the pendency of the guardianship proceedings would advance her welfare, the high court noted.
- The trial court formed a prima facie opinion that the mother had abused the criminal process, but such a conclusion had no basis. It could not have ignored the fact that it was the CWC that gave the minor’s custody to the mother.
- Under the Guardians and Wards Act, the court acts as parens patriae (parent of the country) and is required to determine custody exclusively based on the child’s welfare and interests. It can’t be decided by treating either parent as blameworthy based on unproven allegations.
Mother granted custody
In the view of the material on record, the court opined that the trial court had committed a jurisdictional error in allowing itself to be influenced by observations regarding the alleged falsity of the criminal case lodged by the mother, even though the matter was still under investigation, and set aside its order.
Keeping in view the convenience of the child and ensuring that she can maintain a healthy and meaningful relationship with both her parents, the court directed that interim custody of the girl child should be given to the mother, and the father should be entitled to visitation rights and interim access to the child on such days and at such timings as may be fixed by the trial court.
