Allahabad HC: Father Cannot Transfer Defacto Custody Of Minor Child

The Allahabad High Court has ruled that a father does not have the right to transfer defacto custody of a minor child to any other person, overturning a previous single-judge order.

A two-judge bench of the Allahabad High Court has set aside a single-judge ruling that a father has the right to transfer defacto custody of a minor child to any person.

Allowing the appeal filed by the mother of a child, a bench comprising Chief Justice Arun Bhansali and Justice Kshitij Shailendra said, "The observations that the father has the right to transfer defacto custody of a minor child to any person is against all cannons of law and morality and the same therefore required to be set aside."

High Court Addresses Habeas Corpus Petition

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 Habeas Corpus petition, the mother alleged that her minor sons Yuvaraj (6) and Ayushman (4) are in illegal custody of the sister and brother-in-law of the respondent husband and therefore, the custody be handed over to the her.

Court's Reasoning and Decision

The single judge had dismissed the petition, observing, "A father being the guardian of a minor has every right to transfer defacto the custody of his minor child to any person."

The two-judge bench, allowing the appeal observed, "A perusal of the conclusion arrived at by learned Single Judge wherein it has been held that a father being the guardian of a minor has every right to transfer defacto the custody of his minor child to 'any person', cannot be sustained under any circumstance."

It also held that the further observation 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 4, 2026, is quashed and set aside," the bench ruled.