Full Text
HIGH COURT OF DELHI
Date of Decision: 18.05.2026
PARVEEN .....Appellant
Through: Mr. Mahboob Inayati and Mr. Shoaib Khan, Advs alongwith the Appellant in person
Through: Mr. Ajay Mahla and Mr. Vishal Chhillar, Advs. for R-1.
(through VC)
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT
1. The present appeal under Section 19 of the Family Courts Act, 1984 has been preferred by the Appellant/mother assailing the consolidated Judgment and Decree dated 20.03.2025 passed by the learned Judge, Family Court, North-West District, Rohini Courts, Delhi in GP No. 48/2022 (Old GP No. 53/2016) and GP No. 66/2022 (Old GP No. 4/2017), whereby the custody petition preferred by the Appellant came to be dismissed and Respondent No.1, namely Ms. Meena Mir, who is the paternal aunt (Bua) of the minor children, was appointed as guardian and granted custody of the minor children namely Master Ayaan Ali and Baby Aleena. Insofar as Master Ayaan Ali is concerned, he has since attained majority.
2. The factual backdrop giving rise to the present appeal is that the Appellant is the biological mother of the above-named children. The Appellant’s husband, Late Sh. Juber Ali, expired on 20.07.2016. Shortly thereafter, on 30.08.2016, the children came to reside with their paternal side of the family.
3. Initially, the paternal grandmother of the children, namely Ms. Amna, instituted a guardianship petition being GP No. 53/2016 before the learned Family Court. Subsequently, the Appellant also instituted an independent guardianship petition being GP No. 4/2017 seeking permanent custody of the children. During the pendency of the proceedings, Ms. Amna expired in February, 2021, whereafter Respondent No.1/paternal aunt was impleaded and continued the proceedings.
4. Both petitions were consolidated and came to be decided by the impugned common Judgment dated 20.03.2025. The learned Family Court, while passing the impugned Judgment, interacted with both the minor children. The children expressed their desire to stay with the Respondent No. 1/Meena Mir and not with their mother. The Family Court, accordingly, held that change of custody at that stage would not be in the interest and welfare of the minor children, and disposed of the matter granting custody to Respondent No. 1/paternal aunt, while also granting limited visitation rights to the Appellant/mother to meet the children from 20th to 23rd June and 25th to 28th December every year between 4:00 PM to 6:00 PM at Pacific Mall, NSP, Delhi, along with video call access every Wednesday and Saturday between 7:00 PM to 8:00 PM. It is noted that during the pendency of the present appeal, Master Ayaan Ali has attained majority.
5. Assailing the impugned Judgment, learned counsel for the Appellant submits that the Appellant is the biological mother of the children, employed, and financially capable of taking care of them. It is submitted that the Learned Family Court failed to appreciate the mandatory bar contained in Section 19(b) of the Guardians and Wards Act, 1890, which prohibits appointment of a guardian when the mother is alive and has not been found unfit. It is further submitted that Respondent No. 1 had wilfully flouted the visitation orders of the Court, and had even physically assaulted the Appellant on 14.03.2021 during a court-ordered visit, as evidenced by a video on record. It is contended that the children had never been given a level playing field to exercise a free and independent choice, having been separated from their mother since 2016 and allegedly subjected to parental alienation.
6. Per contra, learned counsel appearing for Respondent No.1 submits that the children have continuously resided with Respondent No.1 for almost a decade. They are well settled in Mumbai socially, emotionally and academically; and that both children have consistently expressed their unwillingness to reside with the Appellant. One of the children namely, Ayaan Ali, has attained majority.
7. During the pendency of the present appeal, this Court had on 17.05.2026 directed that the minor child Aleena be produced/connected through Video Conferencing on 18.05.2026. Accordingly, on 18.05.2026, the child Aleena appeared through Video Conferencing and was interacted with by this Court.
8. Upon being queried, Baby Aleena stated that she is presently about 15 years of age and is presently residing in Mumbai with her Bua/Respondent No. 1, that she is happy there, and that she is pursuing her studies. She clearly and unequivocally stated that she does not wish to live with her mother/Appellant. She further stated that she would be willing to visit her mother in accordance with the visitation schedule already provided in the impugned Order dated 20.03.2025 and shall abide by the same.
9. Significantly, during the course of interaction, this Court did not perceive any visible indication of fear, tutoring, coercion or emotional distress. The child appeared capable of expressing an independent and reasoned preference.
10. We have heard learned counsel for the parties and perused the record.
11. It is trite law that in matters concerning custody and guardianship of children, the paramount consideration is not the legal right of either party, but the welfare and best interests of the child. The Supreme Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, has held, that while adjudicating custody disputes, the welfare of the child must override all statutory and parental rights, as under:
12. Likewise, in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, the Supreme Court reiterated that custody issues cannot be decided merely on the basis of legal entitlement of parties and that the Court exercises parens patriae jurisdiction with the welfare of the child being the dominant consideration. The relevant paragraphs are extracted as below: “Principles governing custody of minor children
52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”
13. In the aforesaid backdrop, there is no quarrel with the proposition canvassed by the Appellant that ordinarily a biological mother occupies a preferential position in matters concerning custody of minor children. Equally, Section 19(b) of the Guardians and Wards Act places restrictions upon appointment of a guardian where a natural parent is alive and not found unfit. However, it is equally well settled that the statutory preference available to a natural parent is not absolute and must yield where the welfare of the child demands otherwise.
14. In the facts of the present case, the children have admittedly remained in the care and custody of Respondent No.1 and the paternal family since the year 2016. Almost ten years have elapsed since the children ceased to remain in the Appellant’s day-to-day custody and during this prolonged period, the children have grown up in a particular social and emotional environment and are presently well settled in Mumbai.
15. More significantly, both the learned Family Court had interacted with both children. This Court has independently interacted with Aleena, who continues to be a minor, as the other child has already grown major by now. The consistent preference expressed by the children before Family Court and by minor girl child before this Court is that they do not wish to relocate from the present environment in which they are residing.
16. The preference expressed by a child of mature age and sufficient understanding cannot be brushed aside lightly. Though the wishes of the child are not determinative, they undoubtedly constitute an important factor in evaluating the welfare of the child.
17. Baby Aleena is presently about 15 years of age. At this stage of adolescence, compelling the child to relocate against her clear wishes, may seriously disrupt her emotional equilibrium, educational continuity and psychological wellbeing.
18. We are also conscious of the allegations regarding noncompliance of visitation orders and the grievance of parental alienation raised by the Appellant. Any attempt by a custodian to undermine the emotional relationship of children with the other parent is unquestionably a matter of concern.
19. However, even while taking the said allegations into consideration, this Court cannot lose sight of the present realities obtaining in the life of the children. Custody adjudication cannot be undertaken as an exercise to determine inter se dispute between adults. The determinative consideration remains the present and future welfare of the children. At this stage, unsettling the existing custody arrangement, despite the unequivocal and consistent wishes expressed by the children, may not advance their welfare.
20. In view of the foregoing, and particularly in light of the unequivocal wish expressed by the minor child Aleena before this Court during the interaction held on 18.05.2026, we find no ground to interfere with the impugned Judgment and Decree dated 20.03.2025. The findings of the Learned Family Court, which are premised on extensive interaction with the children, appreciation of evidence, and the welfare of the children, do not call for any interference at this stage.
21. Accordingly, the present appeal is disposed of sustaining the Judgment and Decree dated 20.03.2025 passed by the learned Family Court in GP No. 48/2022 and GP No. 66/2022.
22. The visitation rights granted to the Appellant under the impugned Judgment shall continue to remain operative and shall be strictly complied with by Respondent No.1 in both letter and spirit. It is further open to the children to reside with the Appellant/mother during their visit to Delhi, if so desired by them. It is clarified that since Master Ayaan Ali has attained majority, the question of his custody or guardianship no longer survives for consideration and he shall be at liberty to reside wherever he chooses.
23. Respondent No.1 shall further ensure that the children meaningfully interact with the Appellant during the visitation periods as well as during video-call sessions, without obstruction or impediment.
24. It is clarified that any deliberate violation of the visitation arrangement shall entitle the Appellant to seek appropriate remedies in accordance with law.
25. Pending applications, if any, also stand disposed of.
VIVEK CHAUDHARY, J RENU BHATNAGAR, J MAY 18, 2026/my/kp/tr