Judgment Intelligence
Petition Dismissed- Court
- Bombay High Court
- Date of Decision
- 31 August 2026
- Bench
- Justice N.J. Jamadar
- Relevant Acts & Sections
- Guardians and Wards Act, 1890 — Sections 12, 25; Constitution of India — Articles 226, 227
Writ petition dismissed and rule discharged, no costs; the District Judge, Kalyan requested to decide M.A. No. 85 of 2019 preferably within six months from 8 September 2026; till then the petitioners to have access to the child every Friday and Saturday for three hours at a place the District Judge fixes; the observations are not to influence the trial (paras 66-67).
Key holdings
- Welfare of the child is paramount even when custody is sought from a person who is not a parent or lawful guardian (paras 34-35).
- Under Section 25 of the Guardians and Wards Act, a ward's return may be ordered only if the Court finds it is for the ward's welfare (para 28).
- A child's intelligent preference must be considered, but it is not decisive (paras 43, 52).
- The custody court is better placed than a writ court to assess welfare, use experts and supervise access (para 61).
Brief Facts
Court's Findings
Legal Principle
Precedents Relied Upon
- Tejaswini Gaud and others v. Shekhar Jagdish Prasad Tewari and others (2019) 7 SCC 42
Cited by the petitioners for the writ court's power to transfer custody; the Court relied on it for the rule that the welfare of the minor, not the legal right of the parent or guardian, is the paramount consideration.
- Rakesh Tulsidas Rathod v. Jayraj Vishram Vapikar and others Criminal WP/579/2021 dated 1/2/2022 (Bombay High Court)
Cited by the petitioners; the Court quoted it: welfare of the minor is a broad and elastic expression and every factor bearing on the child's overall development must be given due weight.
- N. Nirmala v. Nelson Jayakumar (1999) 1 DMC 737
Cited by the petitioners (Madras High Court): welfare includes the moral and ethical welfare of the child.
View all precedents (15)
- Venkatarama Ayyangar v. Thulasi AIR 1950 Madras 320
Cited by the petitioners: a child of tender age cannot make an intelligent preference; the Court said the reliance had to be read with the rule that an intelligent preference must be considered though it is not decisive.
- S Rama Iyer v. K. V. Nataraja Iyer AIR 1948 Madras 294
Cited by the petitioners with Venkatarama Ayyangar on a young child's preference; read by the Court in the light of the same principle.
- Athar Hussain v. Syed Siraj Ahmed & Ors (2010) 2 SCC 54
Cited by the respondent; the Court relied on it: on interim custody under Section 12 the Court is guided by welfare and must find sufficient and compelling reasons to change custody with immediate effect; stability and consistency matter.
- Tarun Ranjan Majumdar & Anr v. Siddhartha Datt AIR 1991 Calcutta 76
Cited by the respondent (Calcutta High Court, Division Bench).
- Ruchika Bindra v. Harvinder Singh Bindra 2010 SCC OnLine Del 917
Cited by the respondent (Delhi High Court).
- Somprabha Rana & Ors v. State of Madhya Pradesh and Ors (2024) 9 SCC 382
Cited by the respondent; the Court relied on it: the child's welfare is the only paramount consideration, a child is not movable property, and the court under the Guardians and Wards Act is the appropriate forum to decide custody.
- Gaurav Nagpal v. Sumedha Nagpal AIR 2009 SC 557
The word ‘welfare’ must be taken in its widest sense and includes the moral and ethical welfare of the child.
- Nil Ratan Kundu and anr. v. Abhijit Kundu (2008) 9 SCC 413
In selecting a guardian the Court exercises parens patriae jurisdiction; if the minor can form an intelligent preference, the Court must consider it, the final decision resting with the Court. (Printed in the judgment as "(2008) 9 SC 413".)
- Dhanwanti Joshi v. Madhav Unde I (1998) DMC 1 (SC)
The welfare of the child is not measured by money or physical comfort alone; moral and religious welfare and ties of affection count.
- Nirmala v. Kulwant Singh and Ors. (2024) 10 SCC 595
Compelling a young child to leave grandparents with whom he had long lived may cause psychological disturbance; a graded exercise to build the bond is not for the Article 226 jurisdiction.
- Shazia Aman Khan and Anr. v. State of Orissa and Ors. (2024) 7 SCC 564
A child who had lived since birth with persons who were not her biological parents cannot be treated as a chattel; her wishes and stability are relevant and welfare prevails over personal law and statute.
- Roshan Lal and Anr. v. Gautam Khanna and Ors. SLP(Cri) No.5229 of 2022 dated 12-09-2023
Custody of minor children is decided on their welfare, not on the rival parties' rights; the pending custody case was left to the Family Court without disturbing custody.
