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The Primacy of Maternal Custody for a Girl Child: A Legal Analysis


The legal discourse surrounding child custody has always been a complex and multifaceted issue. The recent judgment by the Bombay High Court in this case (Writ Petition No. 2048 of 2023), has brought to the fore the importance of maternal custody, especially for a girl child approaching puberty. This article aims to analyze the legal principles and societal considerations that underpin this judgment, focusing on the welfare of the child and the role of the mother in her upbringing.

The Primacy of Maternal Custody for a Girl Child

Background of the Case

The couple in question got married in February 2010 and were blessed with a daughter in January 2015. However, the marital harmony was disrupted when the husband alleged that he discovered chats in November 2019 suggesting his wife’s involvement in extramarital affairs. This revelation led to a series of disputes between the couple, setting the stage for the legal battle that ensued.

The allegations of adultery not only strained the marital relationship but also became pivotal in determining the custody of their minor child. The husband’s claim of his wife’s infidelity served as a basis for arguing against her fitness as a custodial parent, thereby adding a complex layer to the custody proceedings.

Legal Proceedings

The wife lodged a Domestic Violence complaint against her husband, coupled with an application for interim custody of their minor child. In January 2020, the husband took the initiative and filed for divorce before the Family Court. Notably, he also sought permanent custody of their minor child in his divorce petition.

In its initial ruling, the Family Court granted interim custody of the minor girl to her mother while also affording the father visitation rights. This decision laid the foundation for the subsequent legal challenge, with the husband petitioning the Bombay High Court to contest the Family Court’s custody order.

This case underscored the complexities of divorce proceedings, domestic violence complaints, and the interplay between parental rights and the best interests of the child. The case raised questions not only about the allegations of adultery but also about the role of each parent in nurturing the child’s development.

Arguments made by Husband

The husband contended that the paramount consideration should be the minor child’s comfort, safety, and convenience. He argued that the child’s best interests would be better served if she remained under his custody, given the support of his joint family. The husband further pointed out that the child had expressed distress and unhappiness while in her mother’s custody. This assertion was supported by notes she had written to her father, which the husband presented as evidence.

The applicant also referred to a psychiatrist’s report that indicated the child’s emotional distress while in her mother’s care. He highlighted the allegations of adultery against the wife and asserted that the moral and ethical welfare of the child would be compromised if she were placed under her mother’s custody. The husband’s arguments centered on the child’s well-being and the assertion that the father could provide a more stable and supportive environment for her growth.

Submission made by Wife

The wife countered the husband’s arguments with a strong defense of her custodial rights. She contended that the Family Court’s decision to grant interim custody to the mother was balanced, taking into account the child’s access and visitation rights with the father. She emphasized the child’s pre-puberty stage and the necessity for maternal care during this phase. Given that the mother was also a qualified doctor, she argued that she was better equipped to understand the physical and hormonal changes the child would undergo.

Counsel for the wife further alleged that the husband was engaging in parental alienation, poisoning the child’s mind against the mother. They asserted that the child’s well-being was intrinsically linked to her mother’s care and attention, especially considering the girl’s impending hormonal and physical changes.

Court’s Observations and Ruling

Bombay High Court delivered a nuanced ruling that prioritized the welfare of the child. The court’s observations and ruling reflect a careful balancing of the child’s best interests, gender sensitivity, and the unique circumstances of the case.

During the proceedings, the court had the opportunity to interact with the child in chambers. It noted that the child expressed a desire to be with her father. However, Justice Deshmukh also acknowledged the complexity of the situation, stating that the child’s immediate comfort might be a driving factor at her tender age. The court recognized that the child’s wishes were a relevant consideration, but her ability to make an intelligent preference was limited due to her age and developmental stage. The ruling underscored the holistic concept of the child’s welfare, encompassing both physical and mental well-being, health, comfort, and overall social and moral development. The court’s assessment considered the allegations of adultery and their impact on the child’s welfare. The court noted that the allegations were not conclusively established and that custody with the mother had not demonstrably harmed the child’s moral and ethical welfare.

Importantly, the court recognized the dynamics of the custody arrangement. It acknowledged that the child had been with her father for a significant period since December 2019, and the transition to her mother’s custody in February 2023 was significant. Despite the child’s complaints, the court interpreted them as a normal resistance to discipline, which underscores the importance of nurturing the mother-child bond to prevent parental alienation.


The Bombay High Court’s decision in this case serves as a poignant reminder of the complexity inherent in child custody cases. The ruling highlights the need to consider a range of factors, from the child’s developmental stage to the parental roles and responsibilities. By prioritizing the welfare of the child and acknowledging the unique challenges faced by a girl child during her growth, the court has set a precedent that reflects the evolving societal understanding of gender dynamics and parental roles in child upbringing.

In alignment with the principles enshrined in the concept of a child’s welfare, the court found that the child’s best interests were best served by granting interim custody to the mother. The court took into account the child’s age, gender, and the mother’s qualifications as a doctor. This decision reflected a careful weighing of the various arguments presented and highlighted the significance of maternal care during the pre-puberty phase.


Author: Parthvi Patel, United World School of Law 



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