MP High Court: 12-Year-Old's Wish Alone Can't Settle Custody, Mother's Love And Care Still Matter Most

The Madhya Pradesh High Court has held that a twelve-year-old child's preference to stay with one parent cannot by itself decide custody, observing that at this age, "the love, care and company of the mother" remain crucial for his development, and that continuing custody with the mother better serves his welfare than a change sought by the father.

A division bench of Justice Vivek Agarwal and Justice Avanindra Kumar Singh made the observation while dismissing an appeal by father against a Family Court judgment refusing to transfer custody of his son from the mother to him.

The appeal, filed under Section 47 of the Guardian and Wards Act, 1890 read with Section 19 of the Family Courts Act, 1984, challenged a July 20, 2020 judgment of the Principal Judge, Family Court, Shahdol, rejecting the father's plea for custody.

Shri Manoj Sharma, Senior Advocate, assisted by Ms. Aqsa Mokarram, appeared for the father, while Shri Akhil Singh represented the mother.

Before the High Court, the father's counsel argued that the ward, now about twelve, was capable of deciding what was good for him, and that visitation rights were being repeatedly violated since the mother had shifted with the child to Ghaziabad, outside the trial court's jurisdiction.

The mother's counsel countered that a twelve-year-old was not competent to take such decisions, that the child had moved with her to Ghaziabad for his education, and that the father had contracted a second marriage with children from it. The father, it was submitted, had never actually visited Ghaziabad under the High Court's earlier order of December 22, 2021, making his complaint about denied access incorrect. While the father's counsel disputed the claim about children from a second marriage, the bench recorded that there was "no document on record" to show he had ever visited Ghaziabad to meet his son as directed.

Testing the impugned judgment on the touchstone of the child's welfare, the bench found no error in the Family Court's refusal to transfer custody, and made the earlier interim arrangement of December 22, 2021 absolute, directing the father to meet the ward at the District Child Care Centre, Ghaziabad, for two hours every Sunday, in the mother's presence.

Relying on Vivek Singh v. Romani Singh, the court noted that even where a child had lived with one parent long and shown a preference to remain there, the Supreme Court had held that as the child grows and enters a stage of developing personality, the mother's care becomes important, and her ability to look after education and schooling is relevant. The bench held that "the same reasoning applies even more strongly" at twelve, since the child is going through an important stage of emotional, mental and physical development, and preference alone should not decide custody.

The bench also cited Ruchi Majoo v. Sanjeev Majoo, where the Supreme Court left a child with the mother after finding the remarried father not genuinely interested in day-to-day responsibility. Calling the facts "similar," the bench held that the appellant/father's second marriage weighed in favour of continuing the child with the mother, for greater stability and emotional support.

Disposing of the appeal, the court directed that the father may meet the ward every working Saturday, if the mother is at Shahdol, at the creche attached to the District Court, Shahdol, or at the office of the Secretary, District Legal Services Authority, Shahdol. The mother was directed to permit video calls every Sunday between 8:00 PM and 8:30 PM, subject to the ward's convenience and studies, and to share her mobile number once Senior Advocate Manoj Sharma furnishes an undertaking that the father will not abuse the ward, the mother or their relatives. Either may discontinue a call in case of abuse. The parties remain free to approach the trial court afresh for visitation rights.

Case Title: Abhishek Singh vs Smt. Annanya @ Priya and Others

Date of Order: August 20, 2026

Bench: Justice Vivek Agarwal and Justice Avanindra Kumar Singh