Supreme Court: 'tender years' is not a determinative rule in child custody disputes

Deciding cross-appeals in a bitter custody dispute between separated parents over their two minor children, the Supreme Court held that the 'Tender Years Doctrine' — the presumption that very young children should ordinarily be placed with their mother — cannot be applied as a determinative principle in Indian custody law. Custody, the Court held, must instead be governed solely by the paramount consideration of the best interests and welfare of the children, assessed on the facts of each case rather than by a fixed presumption tied to the child's age.

The Court drew on Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which lists 'best interest' as a general guiding principle, and on the framework of the Guardianship and Wards Act, 1890, under which the father had earlier obtained sole custody, with visitation rights to the mother, from the Family Court, a decision later affirmed by the Delhi High Court. On the facts before it, including the children's alienation from the mother and her circumstances abroad, the Court permitted the mother to temporarily take the children to the United Kingdom for schooling, on her undertaking to produce them before any Indian court on demand, while keeping the question of final custody arrangements open for further hearing in January 2027.