# Saumya Sajiv Kumar Sharma & Anr v. State of U.P. & Anr

- **Citation:** (2025) 5 ILRA 1837
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-30
- **Case number:** Application U/S 482 No. 41453 of 2024
- **Bench:** Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saumya-sajiv-kumar-sharma-anr-v-state-of-u-p-anr-53365
- **Pages:** 13

## Headnote

Family Law - Protection of Women
from Domestic Violence Act, 2005,
Sections 12, 21 & 23 - Hindu Minority
and Guardianship Act, 1956, Section 6
- Guardians and Wards Act, 1890 -
Custody
of
minor
female
child
-
Welfare
of
child
-
Paramount
consideration - Female child entering
puberty - Custody to mother preferred
- Father deceitfully taking custody
through
manipulation
-
Digital
evidence
(SMS,
WhatsApp
chats,
Google Maps timeline) corroborating
mother's case - Custody directed to be
handed to mother within three days -
Child's
welfare
not
subservient
to
patriarchal presumption under Section
6 of Hindu Minority and Guardianship
Act
-
Visitation
rights
to
father
reserved. (Paras 15, 18, 19, 20, 21, 23,
24, 26 and 28)

HELD:
The principle that the father is the natural
guardian of the minor child-boy or unmarried
girl, and after him, the mother is primarily
derived from section 6 of the Hindu Minority and
Guardianship Act, 1956, though seminal at its
time. Now it smacks patriarchal bias, therefore,
become obsolete in the progressive realities of
21st- century in India. The judicial interpretation
has commendably filled the legislative void,
especially
in
recognizing
the
preferential
custodial rights of mothers of girl children.
However, true progress demands that the
legislature codify these evolving norms to
ensure
a
consistent
and
gender-neutral
approach across the country. (Para 15)

In
child
custody
proceedings,
especially
involving a minor girl entering puberty, the role
of the family court judge is not merely
adjudicative
but
deeply
protective
and
facilitative. The transition into adolescence is a
sensitive period marked by profound emotional
and physical changes, and the law recognises
the need for careful, child centric engagement
by the judiciary. The judge is tasked with
upholding not just statutory rights but also the
child's dignity, safety, emotional well-being, and
evolving autonomy. (Para 19)

When deciding custody of a girl who has just
entered puberty, courts shall consider: (i) who
the primary caregiver has been, (ii) the girl's
schooling, community ties, and stability, (iii)
allegations of abuse, neglect, or inappropriate
behaviour, and (iv) demeanour and conduct of
the parities to the litigation. The judicial role in
1838 INDIAN LAW REPORTS ALLAHABAD SERIES
custody matters involving minor girls entering
puberty is far more than a procedural
function- it is a constitutional, moral, and
empathetic responsibility. A judge must rise
above adversarial structures and act as a
trustee of the child's welfare. This calls for a
gender-sensitive, emotionally intelligent, and
child-centred judicial approach, ensuring that
the dignity, safety, and well-being of the
child remain the unwavering focus of custody
decisions. (Para 20)

The mother has a unique position in the case of
the custody of the female child. In most cases,
the mother is naturally better positioned to
understand and support a daughter going
through puberty because of shared biological
experience.
The
mother
has
personally
experienced menstruation, other female-specific
changes, and comfort in discussing such issues.
The girls often feel more comfortable talking to
their mothers about body changes, menstrual
hygiene, etc. The mother often plays the more
effective role in emotional attunement, being a
natural caregiver, and is more likely to notice
subtle psychological shifts. The society and
family
dynamics
often
encourage
closer
emotional
bonding
between
mother
and
daughter, especially during adolescence. (Para
21)

Application allowed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,882 of 44,094. This is a partial read: ask again with offset=39882 for what follows._

5 All. Saumya Sajiv Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1837
has been passed not in pursuance to
the police report or the complaint which
attracted the offence carried out by the
applicant whereas the same has been
passed in pursuance to the statement record
by the victim under Section 183 BNSS,
2023.

9.
Impugned
order
dated
07.10.2024 is set aside. Matter is remitted
back to learned Special Judge, POCSO
Act/Additional Sessions Judge, Bareilly for
passing fresh order in pursuance to strict
consonance of the Section 33 of Protection
of Children From Sexual Offences Act,
2012.

10. The instant application stands
allowed accordingly.
---------
(2025) 5 ILRA 1837
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 30.05.2025

BEFORE

THE HON'BLE VINOD DIWAKAR, J.

Application U/S 482 No. 41453 of 2024

Saumya Sajiv Kumar Sharma & Anr.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Mahendra Bahadur Singh, Vijeta Singh

Counsel for the Opposite Parties:
G.A.

Family Law - Protection of Women
from Domestic Violence Act, 2005,
Sections 12, 21 & 23 - Hindu Minority
and Guardianship Act, 1956, Section 6
- Guardians and Wards Act, 1890 -
Custody
of
minor
female
child
-
Welfare
of
child
-
Paramount
consideration - Female child entering
puberty - Custody to mother preferred
- Father deceitfully taking custody
through
manipulation
-
Digital
evidence
(SMS,
WhatsApp
chats,
Google Maps timeline) corroborating
mother's case - Custody directed to be
handed to mother within three days -
Child's
welfare
not
subservient
to
patriarchal presumption under Section
6 of Hindu Minority and Guardianship
Act
-
Visitation
rights
to
father
reserved. (Paras 15, 18, 19, 20, 21, 23,
24, 26 and 28)

HELD:
The principle that the father is the natural
guardian of the minor child-boy or unmarried
girl, and after him, the mother is primarily
derived from section 6 of the Hindu Minority and
Guardianship Act, 1956, though seminal at its
time. Now it smacks patriarchal bias, therefore,
become obsolete in the progressive realities of
21st- century in India. The judicial interpretation
has commendably filled the legislative void,
especially
in
recognizing
the
preferential
custodial rights of mothers of girl children.
However, true progress demands that the
legislature codify these evolving norms to
ensure
a
consistent
and
gender-neutral
approach across the country. (Para 15)

In
child
custody
proceedings,
especially
involving a minor girl entering puberty, the role
of the family court judge is not merely
adjudicative
but
deeply
protective
and
facilitative. The transition into adolescence is a
sensitive period marked by profound emotional
and physical changes, and the law recognises
the need for careful, child centric engagement
by the judiciary. The judge is tasked with
upholding not just statutory rights but also the
child's dignity, safety, emotional well-being, and
evolving autonomy. (Para 19)

When deciding custody of a girl who has just
entered puberty, courts shall consider: (i) who
the primary caregiver has been, (ii) the girl's
schooling, community ties, and stability, (iii)
allegations of abuse, neglect, or inappropriate
behaviour, and (iv) demeanour and conduct of
the parities to the litigation. The judicial role in
1838 INDIAN LAW REPORTS ALLAHABAD SERIES
custody matters involving minor girls entering
puberty is far more than a procedural
function- it is a constitutional, moral, and
empathetic responsibility. A judge must rise
above adversarial structures and act as a
trustee of the child's welfare. This calls for a
gender-sensitive, emotionally intelligent, and
child-centred judicial approach, ensuring that
the dignity, safety, and well-being of the
child remain the unwavering focus of custody
decisions. (Para 20)

The mother has a unique position in the case of
the custody of the female child. In most cases,
the mother is naturally better positioned to
understand and support a daughter going
through puberty because of shared biological
experience.
The
mother
has
personally
experienced menstruation, other female-specific
changes, and comfort in discussing such issues.
The girls often feel more comfortable talking to
their mothers about body changes, menstrual
hygiene, etc. The mother often plays the more
effective role in emotional attunement, being a
natural caregiver, and is more likely to notice
subtle psychological shifts. The society and
family
dynamics
often
encourage
closer
emotional
bonding
between
mother
and
daughter, especially during adolescence. (Para
21)

Application allowed. (E-14)

List of Cases cited:

1. Rajnesh Vs Neha & anr., (2021) 2 SCC 324

2. Devnath Ratre Vs Malti Ratre, (2022) SCC
OnLine Chh 2721

3. Vivek Singh Vs Romani Singh, (2017) 3 SCC
231

4. Rohith Thammana Gowda Vs St. of Kar.,
(2022) 20 SCC 550

5. Vedabai alias Vaijayanatabai Baburao Patil Vs
Shantaram Baburao Patil & ors., (2001) 9 SCC
106

6. Arun Ganguli Vs Amresh Ganguli, 2015 SCC
OnLine Del 13012

7. Dr. Parijat Vinod Kanetkar & ors. Vs Mrs.
Malika Parijat Kanetkar, Criminal Writ Petition
No.750 of 2016 Hon'ble Bombay High Court

8.
Kumar
Vs
Jahgirdar
Vs
Chethara
Ramtheertha, (2004) 2 SCC 688

9. Balram Vs Sushma, Chhattisgarh, Bilaspur
FAM No.9 of 2014

10. Tejaswini Gaud & ors. Vs Shekhar Jagdish
Prasad Tewari & ors., (2019) 7 SCC 42

11. Nil Ratan Kundu & Anr. Vs. Abhijit Kundu,
(2008) 9 SCC 413

12. Goverdhan Lal Vs Gajendra Kumar 17;
Saraswatibai Shripad Vad Vs Shripad Vasanji
Vad, 1940 SCC Online Bom 77

13. Rosy Jacob Vs Jacob A. Chakramakkal 1973
1 SCC 840; X v. Y, Writ Petition No. 2048 of
2023

14. Ramneesh Pal Singh Vs Sugandhi Aggarwal,
2024 (259) AIC 34

15. Selvaraj Vs Revathi, 2023 SCC OnLine SC
1644

16. Mausami Moitra Ganguli Vs Jayant Ganguli,
(2008 ) 7 SCC 673

17. Shazia Aman Khan & anr. Vs St. of Orissa &
ors., (2024) 7 SCC 564

18. Supreme Court in the ABC Vs St. (NCT of
Delhi), (2015) 10 SCC 1

19. Rajesh Babu Saxena Vs St. of U.P. & anr.,
(2024) SCC OnLine All 2260

20. Smt. Parul Tyagi Vs Gaurav Tyagi, (2023)
SCC OnLine All 2684

(Delivered by Hon'ble Vinod Diwakar, J.)

1. Heard Ms. Vijeta Singh, learned
counsel for the applicant no.1, Mr.
Chandan Sharma assisted by Mr. Shubham
Tripathi, learned counsel for the opposite
5 All. Saumya Sajiv Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1839
party no.2, learned A.G.A. for the Staterespondent, and perused the record.

2. The present application has been
preferred for quashing the orders dated
28.08.2023 and 09.10.2023 passed by the
learned Additional Civil Judge (Junior
Division)/Judicial
Magistrate,
Court,
Allahabad, as well as the order dated
10.09.2024
passed
by
the
learned
Additional Sessions Judge/Special Judge
(MP/MLA), Prayagraj, in Criminal Appeal
No.107 of 2024, titled as Saumya Sajiv
Kumar Sharma and another v. Sumit Vats,
arising out of proceedings under Section 12
of the Protection of Women from Domestic
Violence Act, 2005, District Prayagraj.

3. In brief, the facts giving rise to
the present proceedings are that the
marriage between applicant no.11 and
respondent no.22 was solemnized on
18.01.2013. At the time of marriage, a
substantial dowry comprising jewellery,
cash, and other valuable articles was given
by the wife's parents. Despite this, the inlaws of the wife expressed dissatisfaction
with the dowry and persistently demanded
additional amounts, subjecting her to
continuous physical harassment and mental
cruelty. From this wedlock, a girl child
named Samriddhi was born, who has been
arrayed as applicant no.23. She is currently
studying in Class-VI at Loreto Convent
Intermediate College, Lucknow.

4. After their marriage, the husband
and wife resided at various locations,
including Delhi, Patna, and Lucknow, in
accordance with the postings of the
husband.
The
husband
is
presently
employed as a Deputy Chief Engineer with
the Indian Railways. However, due to
irreconcilable
differences,
their
matrimonial
relationship
deteriorated,
culminating in filing of an application
under Section 12 of the Act4. This
application was filed by the wife before the
learned Additional Civil Judge (Junior
Division)/Judicial Magistrate, Allahabad,
on 02.11.2022. In the said proceedings, the
wife- being the mother of the minor child-
also filed an application seeking interim
custody of the minor child.

5. Upon due consideration of the
report submitted by the District Probation
Officer and the statement of the minor child
recorded by the learned Additional Chief
Judicial Magistrate, the prayer for interim
custody was rejected by order dated
28.08.2023. However, the learned trial
court had granted liberty to the mother to
meet her minor child twice a week,
specifically on every Saturday and Sunday.
Thereafter, by a subsequent order dated
09.10.2023,
the
conditions
governing
visitation were modified. The modified
order permitted the mother to meet the
child
in
a
conducive
and
healthy
environment, either at a nearby park or at
the residence of the husband, between
04:00 p.m. to 06:00 p.m. on every Saturday
and Sunday.

6. Aggrieved by the aforesaid
orders, the wife preferred Criminal Appeal
No.107 of 2024 before the learned
Additional Sessions Judge/Special Judge
(MP/MLA), Prayagraj. However, the said
appeal was dismissed vide order dated
10.09.2024. While rejecting the appeal, the
appellate court recorded a finding that the
primary consideration in matters of custody
is the welfare of the minor child, which, in
the present case, was found to be better
secured with the father. It was particularly
noted that the minor child had expressed a
clear desire to reside with her father, and
therefore, it was held that custody with the
1840 INDIAN LAW REPORTS ALLAHABAD SERIES
father would be in the child's best interest.
Additionally, the appellate court observed
that the child's paternal grandparents were
residing
with
the
father,
thereby
contributing to a stable and nurturing
environment at the father's residence.

7. The impugned order dated
10.09.2024 has been challenged by way of
the present application, wherein the wife
seeks custody of the minor female child.

8. During the course of the hearing,
Ms. Vijeta Singh, learned counsel for the
wife, and Mr. Chandan Sharma along with
Mr. Shubham Tripathi, learned counsel for
the husband, were heard at length. The
husband appeared in person before the
Court, whereas the wife participated
through video conferencing, having been
summoned on short notice.

9. Upon interacting with the parties,
the Court found it appropriate to direct both
parties to file their respective affidavits of
assets and liabilities, in accordance with the
guidelines laid down by the Supreme Court
in Rajnesh v. Neha and Another5. This
direction was necessitated by the emergence
of the issue of maintenance during the course
of arguments, particularly in the context of
determining which parent would be better
suited to financially support the minor child.
In compliance with the Court's direction,
both parties submitted their respective
affidavits along with written arguments.
Additionally, a rejoinder affidavit was filed
by the learned counsel for the wife, bringing
certain additional facts on record in response
to the averments made in the counteraffidavit submitted by the husband.

10. Ms. Vijeta Singh, learned
counsel for the wife, submitted that the
impugned orders have been passed without
due consideration of the object and spirit of
the Act4, which is enacted to ensure
adequate protection of the rights of women
guaranteed
under
the
Constitution,
particularly those who are victims of any
form of violence occurring within the
family,
and
to
provide
for
matters
connected therewith or incidental thereto. It
was further contended that the orders were
passed while ignoring material facts and
evidence placed on record. In brief, the
arguments addressed by learned counsel for
the wife have been outlined herein:

 10.1 She next argued that the
statutory provisions with respect to custody
of the minor child in the Act6 and directive
principles enshrined in the Constitution,
besides the U.N. Convention on the Rights
of the Child (UNCRC) ratified by India in
1992, have not been considered objectively
by the learned trial court.

10.2 The Constitutional Courts
have consistently prioritized the child's
personal care, emotional support, and
overall well-being, irrespective of the
statutory provisions of the Act6, as has
been reiterated in a catena of judgments.

10.3 A minor girl entering
puberty undergoes a critical phase of
development,
marked
by
significant
physical
changes
and
emotional
transformation. In light of these factors, the
learned trial court has failed to adequately
consider: (i) the safety, privacy, and
emotional well-being of the female child;
(ii) the mother's vital role as caregiver and
confidante; (iii) the child's comfort in
discussing sensitive and personal matters;
and (iv) the potential risk of trauma arising
from an unsupportive or inappropriate
environment.

10.4
Leading
and
intrusive
questions were put forth by the learned
judge, thereby placing an undue burden on
5 All. Saumya Sajiv Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1841
the child to choose between her parents.
The learned judge failed to appreciate that
the primary objective was to ascertain the
best interests of the child, rather than to
determine fault or adjudicate a contest of
blame between parents whose matrimonial
relationship
had
already
suffered
significant personal hardships leading to
their separation. The role of the judge in
such matters is inquisitorial rather than
adversarial. In addition to assessing the
willingness of the parents to support the
child's education and financial needs, the
learned judge ought also to evaluate their
moral and psychological influence on the
child's upbringing.

10.5 The observation made in the
impugned order dated 28.08.2023, stating
that the child has not been subjected to
domestic violence and that the child's
statement
indicates
no
essential
requirement to transfer custody to the
mother, is erroneous.

10.6 The findings recorded by the
learned trial court are contrary to the
legislative intent and objectives of the
Act4. Furthermore, the learned appellate
court erred in holding that the husband's
employment with the All India Railway
Services, which entails frequent transfers
and lack of permanent stationing at
Lucknow, does not impact the child's
welfare.
There
exists
a
significant
possibility that the husband may be posted
to remote or interior locations in India,
which could adversely affect the welfare
and stability of the minor child.

10.7 The learned Magistrate as
well as the learned appellate court erred in
failing to adequately appreciate that the
child's grandmother is a patient of
hypertension and diabetes, and is a stage-3
cancer survivor who requires regular
medical
follow-ups
and
continuous
medication.
Additionally,
the
child's
grandfather suffers from hypertension and
type-2 diabetes and has experienced three
episodes
of
cerebral
haemorrhage.
Consequently,
household
chores
are
managed by three male servants- Mr.
Munna, Mr. Khepan, and Mr. Nitesh-
provided by the Railways.

10.8 A factually incorrect finding
has been recorded by the learned appellate
court in observing that wife voluntarily left
the matrimonial home. In truth, the
husband deceitfully persuaded his wife to
vacate the government accommodation,
having gained her confidence. The custody
of the minor child was then removed in a
pre-planned manner under the guise of
taking the child to a nearby mall, but
instead, she was taken to the husband's
ancestral home in Gorakhpur. The learned
trial court further erred in failing to
consider a crucial piece of evidence- an
SMS text message dated 26.10.2022, sent
by the wife to the husband at 01:23 p.m.,
which clearly reads: "As you are insisting
me, I am vacating this house at a very
heavy heart as you are telling that you
would be shifting to some other house. I
will be carry[ing] my belongings i.e.
clothes, books, and few daily need items. I
would request you to physically present
today, when I hand over the house to you. It
would be highly appreciated if you reach
here by 02:15 p.m." This message
evidences the fact that the wife vacated the
premises under the husband's insistence
and not of her own volition.

10.9 The husband failed to reach
at the government accommodation where
both parties last resided together, despite
the wife's prior request. Thereafter, the wife
sent another SMS at 02:34 p.m. on the
same day, stating: "Sumit, as it is already
2:30 p.m., since I have to leave on urgent
basis and there is no response from your
1842 INDIAN LAW REPORTS ALLAHABAD SERIES
side, I am leaving and giving the keys
upstairs. Take care. Goodbye."

10.10
This
communication
clearly demonstrates that the wife vacated
the
premises
under
compelling
circumstances
due
to
the
husband's
insistence. Furthermore, the learned trial
court failed to take into account another
significant SMS sent by the wife on 11th
November 2022, which reads:"I am
constantly ringing on maa's phone but she
is not letting me talk to Kusha since 7-8
days and I am also messaging her but no
response from her side. Kindly see so that I
can talk to Kusha."

10.11 This message underscores
the mother's continued efforts to stay in
contact with the minor child and reflects
the obstruction in communication imposed
by the husband's family. The trial court's
failure to consider these communications
amounts to a serious oversight.

10.12 The Google Maps timeline
records dated 04.10.2022, 05.10.2022,
07.10.2022,
and
25.10.2022
clearly
establish that the wife was present in
Lucknow during the relevant period.
Furthermore, on 26.10.2022 at 02:34 p.m.,
she left for Delhi after vacating the
government
accommodation
under
compelled and distressing circumstances.
Contrary to this factual position, the
husband has made incorrect and misleading
averments in his counter-affidavit, alleging
that
the
wife
voluntarily
left
the
matrimonial
home
on
22.10.2022,
abandoning the minor girl child without
any cause or provocation and on 6.8.2022
the divorce petition filed under section 13B of the Hindu Marriage Act, 1955. These
false assertions made by the husband are
clearly
rebutted
by
objective
digital
evidence
and
contemporaneous
communication.

10.13 The birth certificate of the
minor child, issued by the Government of
National
Capital
Territory
of
Delhi,
establishes that the child was born at
Artemis Hospital, Dwarka, New Delhi.
Furthermore, the credit card statement of
Shri Sajiv Kumar Sharma, the father of the
wife, reflects that the entire medical
expenses related to the childbirth were
borne by him. Reliance is placed on the
statement of account of the said credit card
to substantiate this claim.

10.14 There is no female member
in the husband's household, except for the
wife's elderly and ailing mother-in-law,
who herself is dependent on domestic help
to manage her day-to-day activities. In such
circumstances, she is not in a position to
adequately care for a child who is at a
tender and sensitive stage of puberty. At
this crucial developmental phase, the child
requires the care, guidance, and emotional
support of a mother. It is a well-settled
principle that the welfare of the child is of
paramount importance in custody matters.
While
determining
custody,
due
consideration must be given to the child's
overall well-being, including her comfort,
emotional
contentment,
physical
and
mental
health,
education,
intellectual
development, and personal hygiene.

10.15 The husband has filed a
divorce petition based on false averments
stating that both parties have mutually
agreed for mutual divorce under section 13B of the Hindu Marriage Act, 1955, where
the wife could only know about the divorce
petition on receipt of the court notice. She
next submits that the respondent- husband
is a resourceful person and has been using
his resources to frustrate the cause of
justice.

10.16 Learned judge erroneously
overlooked
and
misapplied
the
ratio
decidendi established in; Devnath Ratre v.
5 All. Saumya Sajiv Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1843
Malti Ratre7, Vivek Singh v. Romani
Singh8, Rohith Thammana Gowda v. State
of Karnataka9. It is submitted that the
learned trial court erred in distinguishing
the judgments cited by the applicant on the
ground that they pertain to the Guardians
and Wards Act, 1890 and the Hindu
Minority and Guardianship Act, 1956, and
therefore, are not directly applicable to the
issue of interim custody under Section 21
of the Protection of Women from Domestic
Violence Act, 2005. This distinction is
misplaced, as the central and overriding
principle across all such statutes remains
the same- the paramount consideration is
the welfare and best interests of the
child. Regardless of the specific legislation
invoked, the consistent judicial approach
has been to prioritize the child's overall
well-being while adjudicating custody
matters.

10.17 The learned appellate court
has erroneously overlooked the legal
principles laid down in the judgments
outlined
herein;
Vedabai
alias
Vaijayanatabai
Baburao
Patil
v.
Shantaram Baburao Patil and others10,
Arun Ganguli v. Amresh Ganguli11, Dr.
Parijat Vinod Kanetkar and others v. Mrs.
Malika Parijat Kanetkar12, Kumar V.
Jahgirdar v. Chethara Ramtheertha13,
Balram v. Sushma14.

10.18 It is further emphasised
that, while adjudicating the issue of interim
custody, the paramount consideration must
be the welfare of the child. The concept of
welfare
is
comprehensive
and
must
encompass the child's physical, mental,
emotional, psychological, and medical
needs. However, the learned trial court
failed to appropriately apply this principle
to the facts and circumstances of the
present case. Instead, it erroneously took a
contrary view and concluded- without
sufficient basis- that the child's best
interests would be best served in the
custody of the father. This conclusion
reflects a patriarchal bias, which is
inconsistent
with
the
progressive
constitutional values of gender equality and
the evolving child-centric jurisprudence
upheld by the Constitutional Courts.

10.19 The wife is a well-qualified
professional, currently employed as an
Assistant Professor in the Department of
Hospital
Administration
at
Santosh
Deemed to be University, with a gross
monthly salary of Rs.50,000/-. She is
financially capable of shouldering the
responsibilities
associated
with
the
upbringing of the minor child. This,
however, is without prejudice to her legal
entitlement to claim maintenance, as
recognised under the applicable provisions
of law.

11. Ms. Vijeta Singh, learned
counsel for the wife has further relied upon
the law laid down in Tejaswini Gaud and
Others v. Shekhar Jagdish Prasad Tewari
and Others15; Nil Ratan Kundu and
Another v. Abhijit Kundu16; Goverdhan
Lal v. Gajendra Kumar17; Saraswatibai
Shripad Vad v. Shripad Vasanji Vad18;
Rosy Jacob v. Jacob A. Chakramakkal
1973 1 SCC 840; X v. Y19.

12. Relying on the aforementioned
judgments, learned counsel concluded her
submissions by emphasising that the minor
female child, presently around twelve years
of age, is entering a critical stage of
physiological and hormonal development
associated with puberty. This sensitive
phase necessitates enhanced emotional,
psychological, and physical care- support
that is most appropriately and effectively
provided by the biological mother. In the
present case, the mother, being a qualified
medical professional, is uniquely equipped
1844 INDIAN LAW REPORTS ALLAHABAD SERIES
to offer the specialised care and guidance
required. It is respectfully submitted that
neither the paternal grandmother nor the
paternal aunt can adequately fulfil or
substitute the maternal role, particularly
given the nuanced and intimate nature of
support essential during this developmental
period.

12.1 It is further argued that due
consideration must be accorded to the
significant biological and developmental
factors associated with puberty, including
the child's privacy and overall well-being,
which typically arise between the ages of
10 and 15 years. During this crucial and
formative stage, the presence and active
involvement
of
the
mother
are
indispensable to appropriately address the
unique physical and emotional changes
experienced by the female child. Moreover,
it is contended that the father, by reason of
both biological and practical limitations, is
not suitably positioned to provide the
specialized
care,
understanding,
and
support that the mother is inherently better
equipped to offer during this sensitive
period of transition.

13. Per contra, learned counsel for
husband respectfully submitted that the
contentions
raised
by
the
wife
are
misplaced and untenable in law. It was
argued that the statutory framework, as
well as the judicial precedents relied upon
by the wife, are not applicable to the facts
of the present case. Learned counsel further
contended that the learned trial court has
acted strictly within the bounds of law, and
that no violation of legal or procedural
rights of wife has occurred. In support of
this contention, reliance was placed on
Ramneesh
Pal
Singh
v.
Sugandhi
Aggarwal20;
Selvaraj
v.
Revathi21;
Mausami
Moitra
Ganguli
v.
Jayant
Ganguli22;
Shazia
Aman
Khan
and
another v. State of Orissa and Ors.23 and
argued that the child is capable of forming
an opinion as to whom she wanted to reside
with. The child has categorically stated that
she is happy with her father and would
reside with him. It was also emphasized
that the wife has failed to demonstrate any
substantial prejudice or miscarriage of
justice that would warrant interference by
this Court.

13.1 At the time of solemnization
of the marriage, neither were any demands
made for dowry in the form of jewellery,
cash, or other valuables, nor were such
items voluntarily given by the wife's
family. The allegations of cruelty made by
the wife are baseless, unsubstantiated, and
contrary to the actual facts of the case. On
the contrary, it was the wife who
consistently subjected the husband and his
family members to mental and emotional
harassment, thereby disrupting the peace
and harmony of the matrimonial household.
Furthermore, it is submitted that even the
minor daughter, for whose custody the wife
now seeks judicial intervention, was not
spared
from
repeated
episodes
of
psychological distress allegedly caused by
the wife. These facts, taken cumulatively,
demonstrate a pattern of conduct on the
part of the wife that is incompatible with
the welfare and best interests of the child,
which must remain paramount in any
custody determination

13.2
The
application
under
Section 12 of the Protection of Women
from Domestic Violence Act has been filed
on fabricated and fictitious grounds,
unsupported by any incriminating material.
Accordingly, both the trial and appellate
courts have rightly rejected the prayer for
interim custody of the girl child.
5 All. Saumya Sajiv Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1845

13.3 The wife has falsely alleged
that her husband coerced her into signing
divorce documents and threatened to
deprive her of access to her daughter.

13.4 It is submitted that the wife
voluntarily left her daughter in the custody
of her husband on 22.08.2024 and went to
her parental home of her own volition.

13.5 The wife has lodged a false
FIR bearing no. Case No. 0608 of 2022,
under Sections 498-A, 323, 504, 506, 354
IPC, read with Section 3/4 of the Dowry
Prohibition Act, at Police Station Civil
Lines, Prayagraj, against her husband and
other family members.

13.6
On
01.07.2023,
the
daughter's statement was recorded before
the learned trial court, wherein she stated
that she enjoys living with her father and
family. She expressed comfort and a
preference for residing with her father and
grandparents, and confirmed that she had
not lived with her mother since October
2022.

13.7 The wife has filed multiple
petitions based on incorrect facts, falsely
implicating
the
husband.
Application
No.1132 of 2022 under Section 125 Cr.P.C.
is pending before the learned Judge, Family
Court, Allahabad, alongwith a complaint
under Section 12 of the Protection of
Women from Domestic Violence Act, from
which the impugned order arises.

13.8 The husband has been solely
caring for his daughter, fulfilling both
parental roles, with the support of the
child's grandparents. The child is also
enrolled in a reputed school in Lucknow.

13.9 It was further submitted that,
in today's digital age, the child has access
to necessary information and, as she
matures,
will
understand
her
own
emotional and physical development. She
resides
in
a
healthy
and
nurturing
environment and shares an open and
communicative relationship with her father.

13.10
The
wife
voluntarily
abandoned the matrimonial home and her
responsibilities
towards
the
child.
Therefore, she cannot claim custody based
on
unsubstantiated
and
unsupported
assertions.

13.11 As per the impugned order
dated 28.08.2023, wife never visited
Lucknow to meet her daughter. This raises
a presumption of her lack of emotional
attachment or affection. Notably, she has
only visited Lucknow once to celebrate her
daughter's birthday in the last two years.

13.12 The affidavit of assets and
liabilities
reveals
that
the
child's
grandfather suffers from hypertension,
type-2 diabetes, and has experienced three
cerebral
haemorrhages,
while
the
grandmother is a patient of hypertension,
diabetes, and stage-three cancer. The
answering respondent earns Rs.1,53,000/-
per month and resides in government
accommodation. The other details of
liabilities are irrelevant for the purpose of
the present application.

13.13 It is further disclosed that
the wife is a highly qualified professional,
having completed her B.D.S. degree and a
Master's in Hospital Administration from
King
George's
Medical
University
(KGMU). She has been employed as a
dentist and hospital manager from 1st
March 2012 until October 2022, serving in
several
reputed
institutions
including
Anand Niketan Society Health Care, Ideal
Dental Clinic (Patna), Ortho Dental Clinic
(Patna), Indian Railways, Heritage Hospital
(Lucknow),
Divine
Heart
Hospital
(Lucknow), and K.K. Hospital (Lucknow).
Given
her
extensive
professional
commitments during this period, it is
submitted that she would have limited time
1846 INDIAN LAW REPORTS ALLAHABAD SERIES
to personally care for the child if custody
were to be awarded to her.

13.14 It is argued that the wife
possesses a highly suspicious disposition
and has engaged in superstitious and occult
practices, including black magic, in the
presence of the child. Such conduct
allegedly involved the use of the child's
personal belongings, such as toys, books,
and clothing, for these practices. The
minor, having observed these activities, is
said to have developed severe emotional
distress and apprehension in the presence
of the mother. These experiences, it is
submitted, have resulted in psychological
trauma and instability whenever the child is
compelled to be with the mother.

14. The Guardians and Wards Act,
1890 is a colonial- era legislation that
governs the appointment and regulation of
minors in India. While the Act was a
foundational step in formalising the legal
structure concerning minor's guardianship,
it was drafted at a time when patriarchal
norms heavily influenced social and legal
thinking. Over time, judicial interpretations
and social changes have significantly
progressed, particularly in recognising the
preferential custody rights of the mother,
especially in the case of a female child.

15. The principle that the father is
the natural guardian of the minor child-boy
or unmarried girl, and after him, the mother
is primarily derived from section 6 of the
Hindu Minority and Guardianship Act,
1956, though seminal at its time. Now it
smacks patriarchal bias, therefore, become
obsolete in the progressive realities of 21st-
century in India. The judicial interpretation
has commendably filled the legislative
void,
especially
in
recognizing
the
preferential custodial rights of mothers of
girl children. However, true progress
demands that the legislature codify these
evolving norms to ensure a consistent and
gender-neutral approach across the country.

16. The Supreme Court in Nil
Ratan Kundu case (supra) has held that the
child is not a "property" or "commodity".
Issues relating to custody of minors and
tender-aged children should be handled
with
love,
affection,
sentiments
and
applying a human touch to the problem.

17. It is further delineated by the
Supreme Court in the ABC v. State (NCT of
Delhi)24, that a child, as has been
ubiquitously articulated in different legal
forums, is not a chattel or a ball to be
shuttled or shunted from one parent to the
other. Court exercises parens patriae
jurisdiction in custody or guardianship
wrangles; it steps in to secure welfare of
hapless child of two adults whose personal
differences
and
animosity
has
taken
precedence over future of their child, and
further stretched that an unwed mother is
the sole guardian of her child and does not
need the father's consent to be declared as
such.

18. Again, the Supreme Court in
Kumar V. Jahgirdar case (supra), case
enumerated that the mother cannot always
claim superior custody rights of her
daughter. However, a female child at the
advent of puberty requires a mother's care
and attention, which cannot be gained in
the absence of female company in the
father's house. Thus, to safeguard the
interest of the child, her exclusive custody
may be given to the mother and visitation
rights to the natural father.

19. In child custody proceedings,
especially involving a minor girl entering
puberty, the role of the family court judge
5 All. Saumya Sajiv Kumar Sharma & Anr. Vs. State of U.P. & Anr.
1847
is not merely adjudicative but deeply
protective and facilitative. The transition
into adolescence is a sensitive period
marked
by
profound
emotional
and
physical changes, and the law recognises
the
need
for
careful,
child-centric
engagement by the judiciary. The judge is
tasked with upholding not just statutory
rights but also the child's dignity, safety,
emotional
well-being,
and
evolving
autonomy.

20. When deciding custody of a
girl who has just entered puberty, courts
shall consider: (i) who the primary
caregiver has been, (ii) the girl's schooling,
community
ties,
and
stability,
(iii)
allegations
of
abuse,
neglect,
or
inappropriate
behaviour,
and
(iv)
demeanour and conduct of the parities to
the litigation. The judicial role in custody
matters involving minor girls entering
puberty is far more than a procedural
function- it is a constitutional, moral, and
empathetic responsibility. A judge must
rise above adversarial structures and act as
a trustee of the child's welfare. This calls
for
a
gender-sensitive,
emotionally
intelligent,
and
child-centred
judicial
approach, ensuring that the dignity, safety,
and well-being of the child remain the
unwavering focus of custody decisions.

21. The mother has a unique
position in the case of the custody of the
female child. In most cases, the mother is
naturally better positioned to understand
and support a daughter going through
puberty because of shared biological
experience. The mother has personally
experienced menstruation, other femalespecific changes, and comfort in discussing
such issues. The girls often feel more
comfortable talking to their mothers about
body changes, menstrual hygiene, etc. The
mother often plays the more effective role
in emotional attunement, being a natural
caregiver, and is more likely to notice
subtle psychological shifts. The society and
family dynamics often encourage closer
emotional bonding between mother and
daughter, especially during adolescence.

22. While the father's role is
equally essential in emotional support and
reinforcing gender equality, he may face
limitations in understanding issues related
to shared biological experience and other
female-specific changes and providing
physical assistance with hygiene-related
matters unless he is exceptionally sensitive
and trained.

23. Now, reverting to the facts of
the present case, it is observed that the
husband has opposed the interim custody of
the child based on incorrect and misleading
facts. A careful examination of the SMS
communications sent by the wife to the
husband on 26.10.2022 and 11.11.2022
clearly demonstrates that it was the
husband who insisted the wife to vacate the
government accommodation under the
pretext of relocating to a new residence.
Furthermore,
the
husband,
in
a
premeditated manner, removed the custody
of the minor girl from her mother by
deceitfully taking the child to a nearby mall
and subsequently keeping her at his
ancestral home in Ghazipur for an extended
period, despite the fact that the child
ordinarily resided and pursued her studies
in Lucknow.

24. Upon examination of the
documents submitted by learned counsel
for the wife, it is evident that the minor girl
was born in Delhi at the wife's parental
home, and all related medical expenses
were borne by Shri Sajiv Kumar Sharma,
1848 INDIAN LAW REPORTS ALLAHABAD SERIES
the wife's father. Additionally, screenshots
of
WhatsApp
conversations
reveal
exchanges between the husband and wife
regarding the purchase of a property valued
at Rs. 3.5 crore, consisting of fully
furnished apartments featuring a drawing
room, two lobbies, six spacious bedrooms,
seven bathrooms, a fully modular kitchen,
and a terrace garden. This Court discerns
indications
of
a
deceitful
scheme
orchestrated by the husband- a qualified
engineer- against his wife, a medical
doctor, wherein he gained her trust to
induce her to vacate the government flat.

25. It also transpires from the
petition filed under Section 13(1) of the
Hindu Marriage Act, 1955, that the wife
allegedly deserted the husband on 6.8.2022
following a quarrel, taking with her the
entire stridhan, including clothes and
jewellery. The husband claims to have
made sincere efforts to reconcile the
matrimonial
dispute.
However,
these
averments are contradicted by the contents
of the WhatsApp chat dated 26.10.2022,
which clearly indicate that the wife left the
matrimonial home only on 26.10.2022.
This is further supported by the screenshots
of the Google Maps timeline, reflecting the
wife's presence at Mall Road, Bandariya
Bagh
Railway
Colony,
Lucknow,
throughout the day on 4.10.2022, similarly
on 5.10.2022, and 7.10.2022, with specific
time stamps at 08:58 p.m. and 9:16 p.m.,
respectively (pages 99 to 103 of the
rejoinder affidavit filed by the wife). The
Google Maps timeline of 26.10.2022 shows
the wife at Bandariya Bagh Railway
Colony, Lucknow, at 3:34 p.m., and
subsequently at Batohi Resort, Rae Bareli,
on Lucknow Road, at 4:15 p.m.

26. The aforementioned WhatsApp
chat screenshots and Google Maps timeline
conclusively demonstrate that the wife
resided at Bandariya Bagh Railway Colony
until 3:34 p.m. on 26.10.2022, after which
she proceeded towards Delhi. These details
directly contradict the averments made by the
husband in his responses to the application
filed under Section 12 of the Protection of
Women from Domestic Violence Act, 2005,
as well as the application under Section 23 of
the said Act seeking interim custody of the
female child.

27. In essence, to retain custody of
the girl, the husband first orchestrated a
fabricated story to remove her from the
mother's care.