HC: Father cannot transfer de facto custody of minor to ‘any person’

Prayagraj: A division bench of Allahabad high court has set aside a single-judge ruling that a father has the right to transfer de facto custody of a minor child to any person.

Allowing the appeal filed by the children’s mother, a division bench comprising Chief Justice Arun Bhansali and Justice Kshitij Shailendra said: “The observations that the father has the right to transfer de facto custody of a minor child to any person are against all canons of law and morality and the same therefore required to be set aside.”

The appeal was filed against a single-judge order in a habeas corpus petition, which dismissed the plea filed by the mother, who sought custody of her two children.

In the petition, the mother alleged that her sons, aged 4 and 6, were in the illegal custody of the sister and brother-in-law of the respondent-husband and, therefore, the custody be handed over to her.

The single judge, in an order dated April 3, dismissed the petition, observing: “A father being the guardian of a minor has every right to transfer de facto custody of his minor child to any person.”

The division bench, allowing the appeal, observed: “A perusal of the conclusion arrived at by the single judge wherein it has been held that a father being the guardian of a minor has every right to transfer de facto custody of his minor child to ‘any person’ cannot be sustained under any circumstance.”

The division bench also held that one of the parents cannot challenge the right of the father in order to have the custody of a minor is “wholly unsustainable”.

“Consequently, the appeal is allowed. The order dated April 3, 2026, is quashed and set aside,” the division bench ruled in its judgment dated April 28.
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