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The Appellant-father, in this case, was a Supreme Court Advocate on Record who filed an appeal by special leave against the order of the Delhi High Court which disposed of his Habeas Corpus petition. This petition he had filed for his estranged daughter. The Respondent Ram Gopal Agarwala


Citation: AIR 2005 SC 2426

Parties involved: Rajesh K Gupta- Appellant, Ram Gopal Agarwala & Ors.- Respondents

Criminal Appeal No. 633 of 2005, case in Hon’ble Supreme Court before RC Lahoti, CJ. and GP Mathur, J. The case was decided on April 28, 2005.

The main theme of this case was the dispute between the parents for their minor child’s custody. 


The Appellant-father, in this case, was a Supreme Court Advocate on Record who filed an appeal by special leave against the order of the Delhi High Court which disposed of his Habeas Corpus petition. This petition he had filed for his estranged daughter. The Respondent Ram Gopal Agarwala was the father of the appellant’s wife Aruna Gupta. The appellant’s daughter, two years old, was residing with her mother then.

The appellant had filed his petition in the High Court claiming that his daughter was kidnapped by his wife’s family. The High Court questioned Mrs Aruna Gupta and she claimed that she wanted to live with her parents and retain her child’s custody. The Court then noted that the child was healthy and there was no apparent reason to separate the mother and the daughter. The High Court carefully added that the father was at liberty to file a petition for his child’s custody in a district court following the due process of law. However, after the dismissal of his petition in the Hon’ble High Court, the appellant approached the Apex Court.


The counsel for the appellant contended that the appellant and his wife had an arranged marriage and a material fact about her health was highlighted only after marriage. The wife of the appellant was suffering from paranoid schizophrenia and had received treatment for it in India and the USA. Citing concerns about the safety of the child, he pleaded with the Court to hand over the custody of the child to the appellant-father.

The Respondent’s counsel disputed these contentions and argued that the mother was in a good state to look after the upbringing of the child. He refuted the appellant’s claims as baseless and assured the Hon’ble Court that the child was in good condition.


  1. Among the natural guardians of the child, who has a better right to custody?
  2. Whether the present custody of the child is lawful or unlawful?
  3. Whether the welfare of the child requires a change in custody?


Though it is expected that a child gets the care of both his/her parents, sometimes the differences between the parents cannot be sorted. This marks the ending of a marriage as well as the beginning of an argument about who gets to keep the custody of their minor children. To avoid uncertainties and legal confusion certain rules have been formulated in the context of deciding custody matters.

Pre-independence, the Guardianship and Wards Act 1890[1] contained the rules for custody-related issues. Post-independence, other statutory rules were made to govern the question of custody in India, religion-wise. Because it involves the life of a child, attention is paid to the facts and circumstances of each case. In this particular case, the couple is separating and both the spouses are Hindus. Thus, such a case fell within the ambit of the Hindu Marriage Act[2] and The Hindu Minority and Guardianship Act, 1956[3] when a dispute arose. Moreover, when minors are of an age where they can give the court an impression that they are intelligent enough to understand which guardian they prefer, then the minor’s informed choice will surpass the specifications of any statute.[4]


The court upheld that whenever there is a dispute between the parents regarding the custody of their child, the welfare of the child will be of paramount importance and not the legal right of either of the parties. To support this concept, reference to the case of Veena Kapoor vs Ravinder Kumar Kapoor[5] and the case of Syed Saleemuddin vs Dr Rukhsana[6] was provided by the Court.

The Hon’ble Court took note of the fact that Smt. Aruna Gupta’s medical history reports were mostly from 1984, around two decades old. Additionally, the doctor had also remarked that she had a borderline personality disorder but neither she was found to require further treatment nor was she diagnosed with any obvious medical ailments. Even the 2004 reports of AIIMS, Delhi indicated that she was not suffering from any serious disorder.

The Court pointed out that the Appellant was an Advocate on Record in Supreme Court which is a very demanding profession and the father had assured the Court that his mother would stay with him and look after the child. Yet, the Court also took into consideration that the wife’s Respondent-father and mother were also available to look after the child and the family was financially capable enough to cater to her needs. Hence, the Court found it adequate to let the child remain in the care of her mother and maternal grandparents. It also asserted the High Court’s observation about the child’s well-being while doing so. The Hon’ble Supreme Court also accordingly dismissed the appeal filed by the father.


The Hindu Minority and Guardianship Act 1956 has laid down in very clear words that the natural guardian of a legitimate minor boy or unmarried girl is the father and after him comes the mother except for in cases where the child is below five years of age. If so, then the mother is given the first preference.[7] The factors contributing to this are socio-biological. A child’s early growth requires an adequate amount of attachment to the mother. It is often perceived that a mother is more likely to comprehend the needs and desires of a child and cater to them. Therefore, going by the provisions of this statute the mother was justified in retaining the custody of the child.

This validation of her custody further indicates that the custody was not unlawful or illegal. A writ petition of habeas corpus will be allowed by the court only if the detention is unlawful or unjustified. Since the mother had not wrongly confined the child, the petition was unsupported by law. The matter of Habeas Corpus raised becomes diminished and groundless due to this factor.

In Veena Kapoor’s above-mentioned case, the Supreme Court directed the learned District Judge to evaluate thoroughly what would be in the best interest of a one-year-old child and decide accordingly. This idea of prioritizing the minor’s interests is also incorporated in the 1956 Act which states that the Court shall allow as a guardian a person it deems fit to act with “paramount consideration” of the child’s well-being.[8]In Syed Saleemuddin’s case also, the custody of the children was allowed to remain with the mother who, though ill, was supported by her brother and mother and was also a doctor earning a stable income. The judgement of this case supports the ratio of the decision in the Rajesh K Gupta v. Ram Gopal Agarwala case. The child was faring well in the company in the company of her mother. The parents were available to help with the minor’s upbringing, physically and financially. The tender age of the child was another reason that made proximity to the mother crucial.


The financial condition of the parents and their ability to provide for the necessities of the minor is an essential component in deciding which parent gets custody of the child. When the mother (or her reliable family) is capable of earning for the child then the courts tend to grant custody of the child to the mother. From the case discussed in this article, it is evident that if a mother is ailing, then it does not imply that she is incapable of looking after her child. Though fathers are given dominance in statute, the child’s age or wish can tip the scales in the mother’s favour. The orders in a custody case are temporary and can be modified by courts if need be.[9]

Author(s) Name: Kumari Kanishka (Symbiosis Law School, Noida)


[1] The Guardians and Wards Act, 1890 No. 8, Act of Parliament, 1890 (India).

[2]The Hindu Marriage Act, 1955, No. 25, Act of Parliament, 1955 (India).

[3]The Hindu Minority and Guardianship Act, 1956, No. 32, Act of Parliament, 1956 (India).

[4]Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409.

[5]Dr. (Mrs.) Veena Kapoor v. Shri Varinder Kumar Kapoor, (1981) 3 SCC 92.

[6]Syed Saleemuddin v. Dr.Rukhsana and others, (2001) 5 SCC 247 (India).

[7] The Hindu Minority and Guardianship Act, 1956, § 6(a),No. 32, Act of Parliament, 1956.

[8]The Hindu Minority and Guardianship Act, 1956, § 13, No. 32, Act of Parliament, 1956 (India).

[9]Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.