Where the only reason for moving a child to her father was that her schooling had stopped, a court must first ask whether she can go back to school while staying with the parent she wants to live with, the Allahabad High Court has held, restoring a 10-year-old girl to her mother’s custody.
Prayagraj: The Allahabad High Court has allowed a mother’s intra-court appeal and set aside a Single Judge’s order that had handed over the custody of her 10-year-old daughter to the father in a habeas corpus petition, after the mother agreed that the child would continue at her existing school while living with her [Appellant v. State of U.P. and Others].
A Division Bench of Chief Justice Arun Bhansali and Justice Kshitij Shailendra held that the Single Judge ought to have explored this option, particularly since the child had expressed a desire to live with her mother.
Background of the case
Amid matrimonial discord, the mother left the matrimonial home on May 17, 2026 with the child and began living with her parents in Gautam Buddh Nagar. The father filed a habeas corpus petition seeking custody, alleging that the child, a Class V student, had stopped attending school since then. The mother, a school teacher, said she wanted to admit the child to the school where she teaches, but could not do so as the father had refused to give a no-objection certificate. She has also moved an application under the Guardians and Wards Act, 1890 before the Family Court.
On September 7, 2026, after interacting with both parents and the child, the Single Judge noted that the child was not attending any school but wished to live with her mother. Finding that her education was being adversely affected, and relying on the father’s undertaking to ensure her regular education and care, the Single Judge handed custody to the father, giving the mother visitation rights, daily video calls and temporary custody during vacations.
What the parties argued
Senior Advocate Nipun Singh, for the mother, argued that custody should not have been shifted despite the child’s stated wish to live with her mother, and that the father was refusing the no-objection certificate needed for her admission to the mother’s school. On a query from the Bench, the mother agreed, on instructions, that until she secured that admission, the child could continue at the school where she was already enrolled, which was not far from her parental home.
Counsel for the father argued that the mother’s conduct in keeping the child out of school after leaving the matrimonial home showed that the child’s welfare lay with the father, and pointed out that the child had since resumed school.
Option the Single Judge did not explore
The Bench noted that it was admitted that the child had not attended school since moving to her maternal grandparents’ home, and that the Single Judge, despite recording her wish to live with her mother, had transferred custody only because her studies were affected. It held:
“We are of the opinion that the learned Single Judge was required to explore possibility of child to continue study at the [school where she was enrolled] while continue to reside with the mother especially in view of her desire to reside with her mother, which option apparently has not been explored by learned Single Judge.”
Since the mother had readily agreed to this arrangement, the Court held that the very reason for the custody petition and for the Single Judge’s order had come to an end.
Directions on custody and visitation
The Bench set aside the Single Judge’s order and directed the father to hand over the child to the mother by 6 PM on September 17, 2026, with the local police directed to ensure a peaceful handover. The father was granted visitation rights at the maternal grandparents’ home for three hours on alternate Sundays, temporary custody for five days at a stretch during long school vacations, after which he must return the child, and reasonable audio and video contact by phone in between.
Case Title: Appellant v. State of U.P. and Others
Case Number: Special Appeal Defective No. 669 of 2026
Bench: Chief Justice Arun Bhansali and Justice Kshitij Shailendra, Allahabad High Court
Date of Order: September 16, 2026
Appearance: Senior Advocate Nipun Singh with Naman Agarwal for the appellant; Udai Chandani, Ashutosh Mishra, Rajiv Singh and Standing Counsel for the respondents