CMA(MD)/1136/2022 of R.Arulshanthi Vs R.Vickram on 6 October 2026

JUDGMENT

[Judgment of the Court was made by M.D.SUMATHI, J.] This Civil Miscellaneous Appeal has been filed by the appellants, who are the maternal grandparents of the minor child V.P. Johith, challenging the order and decreetal order, dated 11.10.2022 passed by the learned Judge, Family Court, Karur, in G.W.O.P.No.12 of 2022, whereby the Family Court directed the custody of the minor child to be handed over to the respondent/father.

2. For the sake of convenience, the parties shall hereinafter be referred to as the appellants/maternal grandparents and the respondent/father.

3. The appellants are the maternal grandparents of the minor child, namely, V.P.Johith. The respondent is the biological father of the minor child. The daughter of the appellants, namely, the mother of the minor child, was married to the respondent on 01.11.2017. Out of the wedlock, the minor male child V.P.Johith was born on 07.07.2020. The materials placed before the Court disclose that even after the marriage, the deceased mother had been frequently staying with the appellants and, after pregnancy, she continued to have considerable association with her parental home. The minor child was also under the care and affection of the maternal family.

4. Unfortunately, the mother of the minor child died on 21.05.2021. The appellants have specifically pleaded that the death occurred in suspicious circumstances and that a criminal case in Crime No.347 of 2021 was registered by Pasupathipalayam Police Station in connection with the death of their daughter. The appellants have further stated that the respondent and his mother were arrayed in the said proceedings. The pendency and nature of the criminal proceedings have been relied upon by the appellants not for seeking a determination of the criminal allegations in the present proceedings, but as one of the surrounding circumstances relevant to the question whether an immediate change of custody would be conducive to the welfare of the minor child.

5. It is the specific case of the appellants that, immediately after the demise of their daughter, the minor child continued to remain in their care, affection and custody. According to them, the child had been brought up in the maternal grandparents' household and had developed a natural emotional attachment with them. The appellants also pleaded that, during the pendency of the criminal proceedings, the respondent had demanded the custody of the child and that legal notices were exchanged between the parties on 16.10.2021 and 27.10.2021. The appellants contend that the G.W.O.P. was thereafter instituted by the respondent seeking custody of the child.

6. The respondent/father, on the other hand, approached the Family Court seeking custody of his minor son. His contention, in substance, is that being the biological father and natural guardian of the minor child, he is entitled to have the custody of the child and that the appellants, who are only the maternal grandparents, have no superior legal right over him. The respondent disputed the allegations levelled against him and sought to establish that he is capable of taking care of the minor child and that the custody with the maternal grandparents ought not to continue against his claim.

7. The respondent/father also contended that the appellants had retained the custody of the minor child and had not permitted him to have the normal relationship and access that a father is entitled to have with his child. The pleadings further disclose that the respondent asserted his willingness and capacity to look after the child and sought appropriate relief before the Family Court. The prayer in the original proceedings also contained a request relating to visitation.

8. The Family Court, after considering the pleadings and evidence, ultimately came to the conclusion that the respondent, being the father of the minor child, was entitled to custody and accordingly directed the appellants to hand over the minor child to him. Aggrieved by the same, the present appeal has been preferred.

9. The learned counsel appearing for the appellants would submit that the learned Judge, Family Court, has proceeded substantially on the basis of the respondent's status as the biological father and has failed to apply the fundamental and paramount test governing custody proceedings, namely, the welfare of the child. It is contended that the minor has been continuously under the care of the appellants after the death of his mother and that a sudden transfer of custody would uproot the child from his existing environment.

10. It is further submitted that the Family Court failed to properly consider the criminal proceedings relating to the death of the mother of the minor child and also failed to appreciate the surrounding circumstances in which the child came into the custody of the appellants. The appellants specifically contend that the findings of the Family Court regarding their capacity and circumstances were based upon assumptions and that the Court failed to appreciate the evidence in its proper perspective.

11. Per contra, the learned counsel appearing for the respondent would submit that the respondent is the biological father and natural guardian of the minor child and that there is no legally established disqualification preventing him from exercising custody. It is further submitted that the appellants cannot claim custody merely because they are the maternal grandparents and that the respondent is willing and capable of providing proper care, education and upbringing to the minor child.

12. We have carefully considered the rival submissions, the pleadings, the materials available on record, the order of the learned Family Court and the circumstances which have emerged during the pendency of the appeal.

13. The principal question which arises for consideration in this appeal is: “Whether, in the facts and circumstances of the present case, the welfare and best interest of the minor child would be served by disturbing his existing custody with the maternal grandparents and handing over the child to the respondent-father?”

14. Before considering the rival claims, it is necessary to reiterate the settled legal position. In custody proceedings, the question is not merely as to which party possesses a superior legal or statutory right. The controlling consideration is the welfare of the minor child.

15. Section 17(1) of the Guardians and Wards Act, 1890 expressly provides that, in appointing or declaring a guardian, the Court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. Section 17(2) requires the Court to have regard, inter alia, to the age of the minor, the character and capacity of the proposed guardian, the nearness of kin, the wishes of a deceased parent and the existing or previous relations of the proposed guardian with the minor. Section 17(3) further provides that, if the minor is old enough to form an intelligent preference, such preference may be considered by the Court.

16. The Supreme Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, has repeatedly emphasised that the welfare of the child is the paramount consideration in custody matters and that the Court is not bound to mechanically hand over custody to a person merely because such person possesses a statutory or natural right. The Court has to determine where the welfare of the minor lies on the facts of the particular case.

17. Likewise, in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, the Hon'ble Supreme Court held that the welfare of the child is the supreme consideration and that the father's presumed suitability or superior financial position cannot by itself determine the question of custody. The Court has to undertake a positive assessment of whether the proposed custody would actually promote the welfare of the minor.

18. More importantly, in Nirmala v. Kulwant Singh, (2024) 10 SCC 595, the Supreme Court dealt with a situation involving a maternal grandmother and a biological father and observed that compelling a minor child to withdraw from the custody of grandparents with whom the child had been living for several years could cause psychological disturbances. The Supreme Court emphasised that the welfare of the minor and the child's preference required a detailed enquiry under the Guardians and Wards Act. It also held that the process of developing the bond between the father and child should, where necessary, be undertaken in a graded manner rather than by mechanically disturbing an established custody arrangement.

19. The principle is particularly relevant to the present case. The Supreme Court in Somprabha Rana v. State of Madhya Pradesh, (2024) 9 SCC 382, considered a situation where, after the unnatural death of the mother, the minor child had remained with maternal relatives for a substantial period and the biological father sought custody. The Supreme Court cautioned that a child cannot be treated as movable property and that the Court must consider the impact which disturbance of existing custody would have upon the child. The Court observed that at a tender age, immediate transfer of custody from the maternal side, with whom the child had been living for a considerable period, could make the child miserable and that the existing custody should not be disturbed mechanically.

20. The aforesaid principle is of considerable assistance in the present case. Though the respondent is undoubtedly the biological father of the minor child and his status as natural guardian is a relevant consideration, such status cannot, by itself, conclude the question of physical custody.

21. The appellants have not approached this Court as strangers to the child. They are the maternal grandparents of the minor. After the unfortunate demise of the child's mother on 21.05.2021, the child has remained in their care. The record and the subsequent circumstances demonstrate that the child has not merely been physically housed with

the appellants, but has been brought up in an environment of affection, familiarity and emotional security.

22. An important circumstance which has emerged during the pendency of the appeal is the personal interaction of this Court with the minor child. The child was brought before this Court and the Court had the opportunity to interact with the child and observe the child's behaviour and comfort level.

23. During the interaction, it was apparent that the minor child was comfortable with the maternal grandparents and had a natural and affectionate bond with them. The manner in which the grandparents interacted with the child and the child's response to them clearly demonstrated that the relationship is not a mere arrangement of convenience but one of emotional attachment and familial security.

24. It was further brought to the notice of this Court that the sister of the deceased mother is also residing in the same household along with the child. The said maternal aunt has a child of her own who is also part of the same household. Thus, the minor child is not living in isolation with the grandparents. The child is growing up in an extended familial environment comprising the maternal grandparents, the maternal aunt and another child of the family.

25. Such an environment assumes considerable significance while determining the welfare of a young child. The child has the affection of the grandparents, the presence of the maternal aunt and the companionship of another child within the household. The child has thereby developed a sense of belonging and continuity in that environment. The Court cannot disregard such emotional and social surroundings merely because the respondent happens to be the biological father.

26. In the present case, this Court is not persuaded that the respondent has established any compelling circumstance warranting the immediate disruption of the child's existing environment. On the contrary, the material demonstrates that the child is comfortable and emotionally secure in the custody of the appellants.

27. The Court is conscious that a child cannot be permanently deprived of the relationship with his biological father. The respondent is the father of the minor child and the relationship between them has to be preserved. However, preserving the paternal relationship and transferring the physical custody of the child are two different questions. The first can be achieved by an appropriate arrangement of access and visitation without necessarily disturbing the child's existing residential environment.

28. The respondent's contention that he is the biological father cannot therefore be considered in isolation. The question is whether, on the date on which this Court is called upon to decide the appeal, the immediate removal of the child from the maternal grandparents and the transfer of physical custody to the respondent would promote the child's welfare.

29. On this question, the answer has to be in favour of maintaining the existing custody.

30. It is also relevant that the respondent has not demonstrated before this Court a family environment comparable to that in which the child is presently being brought up. The material indicates that the respondent would principally have the assistance of his aged mother in caring for the minor child. This Court does not intend to make any adverse finding merely on the basis of age. However, while comparing the two proposed environments, the Court is entitled to consider the actual availability of family support, emotional companionship and continuity of care.

31. The present environment of the child consists of the maternal grandparents, the maternal aunt and another child of the maternal family. In contrast, the proposed transfer would remove the child from a familiar environment and place him in an altogether different household. The issue is therefore not one of deciding which household is economically superior or which party has a superior legal status. It is a question of emotional continuity, stability and the least disruptive arrangement for the child.

32. The learned Judge, Family Court, in our considered view, has not undertaken this exercise in the manner required by law. The emphasis appears to have been placed substantially upon the respondent's status as the biological father and the legal position concerning natural guardianship, without adequately examining the practical and emotional consequences of removing the child from the established custody of the maternal grandparents.

33. The Family Court also did not have the benefit of the personal interaction which this Court has now had with the minor child. The child's present comfort and attachment could therefore not have been evaluated by the Family Court in the same manner in which this Court is presently able to assess the circumstances.

34. It is true that Section 17(3) of the Guardians and Wards Act states that the Court may consider the preference of a minor if the minor is old enough to form an intelligent preference. The provision does not mean that the child's statement must mechanically determine the result. The ultimate decision continues to rest with the Court. However, where the age and maturity of the child permit an intelligent expression of preference, the Court is expected to ascertain and give due weight to the same as one of the relevant circumstances.

35. The Supreme Court has repeatedly recognised the importance of personal interaction with the child. In Col. Ramneesh Pal Singh v. Sugandhi Aggarwal, 2024 INSC 397, the Supreme Court held that the welfare determination requires a holistic assessment, including the child's overall well-being, stability of surroundings and, where applicable, the child's preference under Section 17(3) of the Act.

36. In the present case, the learned Family Court did not have the benefit of a meaningful interaction with the minor child for assessing his present comfort, emotional attachment and preference. However, we had such an interaction. The Court has personally observed the child in the company of the maternal grandparents and has found that the child is comfortable with them and responds to their affection and care.

37. The importance of such interaction is heightened by the fact that the child has already experienced the loss of his mother at a very young age. The maternal grandparents, who are the parents of the deceased mother, have thereafter provided the child with a continuing familial environment. It would be contrary to the welfare principle to ignore the emotional significance of that continuity.

38. The Court is not required to determine whether the appellants are morally superior to the respondent or whether the respondent is incapable of parenting. Such a comparison is unnecessary. The Court is required only to determine which arrangement presently better serves the child's welfare.

39. Applying the aforesaid principles, even assuming that the respondent is not otherwise disqualified from exercising parental rights, it does not automatically follow that physical custody must be transferred to him. The respondent must establish that the proposed change would be conducive to the welfare of the minor. On the present material, such a conclusion cannot be reached.

40. The Court is particularly concerned about the consequence of suddenly removing the child from the grandparents with whom he has been living and with whom he has formed an emotional bond. The

Supreme Court in (2024) 10 SCC 595 (supra) has specifically recognised that compelling a child to withdraw from grandparents with whom the child has been living for a considerable period may cause psychological disturbance.

41. The same principle was reiterated in (2024) 9 SCC 382 (supra), where the Supreme Court held that at a tender age, immediate transfer of custody from maternal relatives with whom the child had been living for a considerable period could make the child miserable and that the Court must consider the impact of disturbing the existing custody.

42. The principle applies with greater force in the present case because the Court has itself found, upon interaction, that the child is comfortable and emotionally secure with the appellants. The proposed transfer would therefore not merely involve a change of residence. It would amount to severing, at least for substantial periods of the day, the child's existing day-to-day emotional environment.

43. Such a sudden change may create anxiety, insecurity and emotional distress in the child. The Court is not making a medical diagnosis or recording a clinical finding; it is merely assessing the foreseeable psychological consequences of an abrupt disruption of a young child's established attachment and routine. The law requires the Court to adopt a child-centred approach in making precisely such an assessment.

44. The fact that the appellants are the maternal grandparents and the fact that the child has been living with them since the death of his mother cannot be treated as a temporary circumstance of no consequence. The continuity of care itself has become an important element of the child's welfare.

45. The presence of the maternal aunt and her child in the same household is another relevant factor. The minor is growing up not merely with elderly grandparents but in an extended family setting where there is companionship, interaction and familial affection. The existence of such an environment is a relevant consideration under Section 17(2) of the Guardians and Wards Act, particularly while assessing the existing relationship of the proposed guardian with the minor.

46. The Court also cannot overlook the fact that the child has already suffered the loss of his mother. In such circumstances, the maternal grandparents represent an important continuing connection with the deceased mother and with the maternal side of the family. Removing the child from that environment requires compelling justification, particularly when the child is presently comfortable and well cared for.

47. It is also settled that custody orders are not intended to operate as punitive orders against the respondent/father. The Court must fashion an arrangement which preserves the child's emotional security while ensuring that the child maintains meaningful relationships with both sides of the family.

48. We make it clear that the grant of custody to the appellants is not a declaration that the respondent has been deprived of his status as the father or natural guardian of the minor child. The present determination is made solely on the basis of the paramount consideration of the welfare and best interest of the minor child.

49. On an overall consideration of the pleadings, the evidence, the existing custody, the emotional relationship between the minor and the appellants, the familial environment available to the child, the personal interaction of this Court with the minor, the absence of any material demonstrating that the child is presently being neglected or inadequately cared for, and the potential disruption that an abrupt transfer would cause.

50. It is necessary to remind ourselves that a child is not a movable property, not an article to be claimed, divided or transferred from one hand to another merely on the strength of a legal status or a better financial capacity. A child is a living soul, a bundle of emotions, fears and innocent attachments. Custody is not about asserting ownership or enforcing a right. It is about shouldering a responsibility - the solemn responsibility to protect a tender mind from further hurt and to give it a sense of safety, belonging and unbroken love. A father who seeks to assert himself as the natural guardian cannot rest merely on that legal label. He must also show that he understands the silent duties that go with it - the duty to be present, to be patient, to heal and not to wound, to nurture and not merely to provide. This Court cannot close its eyes to the painful reality that it is the child who has suffered the most. The family has been shattered, and the child has been deprived of the continuous warmth, care and comforting presence of the mother - a loss for which the child was never responsible. If the father had been able to hold the family together with love, understanding and emotional maturity, the child would not have been placed in this pitiable situation today. The child, as the interaction and materials on record reveal, has developed a deep apprehension and an emotional resistance towards the father. That fear, that hesitation in the eyes of a small child, cannot be brushed aside lightly by invoking the father's status as a natural guardian or by pointing to his better bank balance. This Court is deeply conscious that to forcibly uproot the child from the only environment where he has felt loved, secure and cared for, from the lap where he has wept and been consoled, merely because the father is financially better placed, would be an act of cruelty in itself. It may leave a scar on his tender psyche that no amount of comfort later can erase. Ultimately, what matters is not who is legally entitled or who is financially stronger. What matters is where the child's little heart feels safe, where his tears are wiped, where his emotional security lies. Any arrangement that risks subjecting this innocent child to yet another emotional trauma, to yet another separation from love he knows, must be avoided at all costs, for the welfare of the child is, and must always remain, the paramount and only consideration.

51. Therefore, while we are inclined to maintain the physical custody of the minor child with the appellants, we do not intend to exclude the respondent/father from the life of the child. On the contrary, it is in the welfare of the child that the relationship with the father should be preserved and gradually strengthened.

52. The decision of the Supreme Court in (2024) 10 SCC 595 is instructive in this regard. Instead of mechanically transferring custody, the Supreme Court contemplated a graded process for developing the bond between the father and child, keeping the paramount welfare of the child in view.

53. Likewise, in (2024) 9 SCC 382, while declining to disturb the existing custody, the Supreme Court nevertheless recognised the father's right to access the child and directed a graded arrangement so that the child could become familiar and comfortable with the father and paternal grandparents.

54. We therefore hold that the welfare of the minor child, in the peculiar facts and circumstances of the present case, requires that the physical custody of the child should continue with the appellants/maternal grandparents.

55. At the same time, the respondent/father shall not be deprived of meaningful access to the child. The appellants shall facilitate reasonable visitation and interaction between the respondent and the minor child. The visitation arrangement shall be as follows:

(i) The respondent/father shall be entitled to visitation of the minor child on the 2nd and 4th Sunday of every month from 10.00 a.m. to 2.00 p.m.

(ii) The visitation shall take place at a temple situated within a distance of 1.5 kilometres from the place where the minor child ordinarily resides, so as to avoid unnecessary travel and inconvenience to the child.

(iii) The appellants/maternal grandparents shall promptly bring the minor child to the said temple on the scheduled visitation days without fail.

(iv) The respondent/father shall not act against the wish of the child and shall ensure that the visitation is conducted in a peaceful and child-friendly manner.

(v) The respondent/father shall not attempt to take the child outside the said temple premises or to any other place during the visitation without the consent of the appellants and without regard to the child's comfort and willingness.

(vi) The appellants shall not intervene with the visitation and shall observe the visitation from a reasonable distance, enabling the child to have sufficient comfort and meaningful interaction with the respondent/father.

(vii) In case the appellants are unable to comply with the visitation on the specified date and time, they shall make alternate arrangements and ensure that the minor child is brought to the said temple by any other elder member of the family.

(viii) In case the respondent/father is unable to make the visitation on a specified date, he shall intimate the appellants in advance through the respective counsel, so that unnecessary travel and inconvenience to the minor child may be avoided.

(ix) The respondent/father shall at all times give due importance to the comfort and wishes of the child. If the child becomes uncomfortable or distressed during the visitation, the duration of the visitation may be curtailed having regard to the welfare and comfort of the child.

(x) The appellants and the respondent shall extend full cooperation to ensure that the minor child is not exposed to any dispute, quarrel, accusation or unpleasant situation during the visitation.

(xi) The respondent shall be entitled to communicate with the minor child through telephone/video communication at reasonable intervals, subject to the convenience, comfort and willingness of the child.

(xii) The appellants and the respondent are directed to maintain cordial and reasonable communication with each other, to the extent necessary for facilitating the visitation and to avoid any miscommunication or unnecessary dispute concerning the minor child.

56. The aforesaid visitation arrangement is intended to preserve and gradually strengthen the relationship between the respondent/father and the minor child without disturbing the child's existing residential environment, education, health, routine and emotional well-being. Accordingly, the order of the learned Family Court cannot be sustained.

57. In the result,

(i) The Civil Miscellaneous Appeal is allowed.

(ii) The order and decretal order dated 11.10.2022 passed by the learned Judge, Family Court, Karur, in G.W.O.P.No.12 of 2022 are set aside.

(iii) The physical custody of the minor child V.P.Johith shall continue with the appellants/maternal grandparents.

(iv) The appellants shall ensure that the minor child maintains a meaningful and continuing relationship with the respondent/father.

(v) The respondent/father shall be entitled to visitation of the minor child on the 2nd and 4th Sunday of every English Calendar month from 10.00 a.m., to 2.00 p.m., at a temple situated within 1.5 kilometres from the place where the minor child resides, subject to the conditions stipulated.

(vi) There shall be no order as to costs.

[ G.R.S., J.] & [M.D.S., J.] 06.10.2026 Index : Yes/No Internet : Yes/No NCC : Yes/No PJL To

1. The Judge, Family Court, Karur.

2. The Section Officer, V.R Section, Madurai Bench of Madras High Court, Madurai.

G.R.SWAMINATHAN, J. AND M.D.SUMATHI, J. PJL Judgment made in C.M.A(MD)No.1136 of 2022 06.10.2026