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This article has been researched and written by Advocate Aarun Chanda, who practices divorce law in Mumbai and Pune. It is intended solely for academic purposes and should not be construed as legal advice. The views expressed are personal. Readers are encouraged to consult a qualified lawyer or advocate specializing in divorce cases for professional legal guidance.
There is a sentence that family lawyers hear with remarkable frequency.
“Sir, the child is twelve now. He has clearly told the Court that he wants to stay with me. So, surely the case is over?”
It is usually accompanied by the confident expression of a litigant who believes that the child has just delivered the most important piece of evidence in the entire case.
I sometimes tell such clients, half in jest, that Family Courts are fortunately not election commissions. A custody case does not end merely because a twelve-year-old has voted.
The humour usually disappears rather quickly.
Behind that seemingly simple statement lies one of the most difficult questions that a Family Court can ever be asked to answer: When a child is old enough to express a preference, how much weight should the Court give to that preference?
The question becomes even more difficult when the child is caught between two parents who both genuinely believe that they are acting in his or her best interests.
The recent judgment of the Madhya Pradesh High Court in Abhishek Singh v. Smt. Annanya @ Priya, decided on 20 August 2026, provides a timely and important answer. A Division Bench comprising Justice Vivek Agarwal and Justice Avanindra Kumar Singh considered a custody dispute concerning a twelve-year-old child. The father contended that, at that age, the child was sufficiently mature to decide where he wanted to live. The High Court, however, declined to treat the child’s preference as decisive.
The judgment is important not because it says that a child’s wishes do not matter.
It says something considerably more sensible:
A child’s voice must be heard, but the child cannot be made responsible for deciding his own custody.
That distinction goes to the very heart of child custody jurisprudence.

1. THE TWELVE-YEAR-OLD WHO BECAME THE CENTRE OF A LEGAL BATTLE
The proceedings arose from a challenge by the father, Abhishek Singh, to an order of the Family Court at Shahdol which had rejected his application seeking transfer of custody of his son from the mother to himself.
By the time the appeal came before the High Court, the child was approximately twelve years old.
The father’s argument was understandable. The child had reached an age at which he could express himself, understand his surroundings and form preferences. The father also complained that visitation arrangements were being repeatedly violated and that the child had been taken from Shahdol to Ghaziabad, making effective visitation difficult.
The mother’s position was that the child was settled with her, was receiving proper education and care, and that the fact that he may prefer to remain with her could not be treated as an independent answer to the question of custody.
The High Court therefore had to look beyond the obvious question—“Who does the child want to live with?”—and consider the more fundamental one:
“What arrangement is in the child’s best interests?”
That difference is the foundation of the entire law relating to custody.

2. THE LAW GIVES THE CHILD A VOICE—NOT THE JUDGE’S CHAIR
The starting point is Section 17 of the Guardians and Wards Act, 1890.
The provision requires the Court, while considering the appointment or declaration of a guardian, to be guided by what appears, in the circumstances, to be for the welfare of the minor.
Section 17(3) is particularly relevant. It provides that, if the minor is old enough to form an intelligent preference, the Court may consider that preference.
Those words deserve attention.
The statute does not say:
“The Court shall follow the preference of the minor.”
Nor does it say:
“The preference of a child above a particular age shall be binding upon the Court.”
The legislature deliberately used the expression “may consider.”
There is considerable wisdom in that formulation.
A child can know what he wants without necessarily knowing what is best for him.
Adults understand this distinction in their own lives. We frequently want things that are not good for us. The law does not assume that a child becomes immune from that very human limitation merely because he has crossed a particular birthday.
And twelve is not a magic number.
There is no statutory switch that suddenly turns on at midnight on a child’s twelfth birthday and announces:
“Custody decision-making powers activated.”
The Court must assess maturity, circumstances and welfare.

3. THE SUPREME COURT HAD ALREADY DRAWN THE DISTINCTION
The Madhya Pradesh High Court’s reasoning is firmly anchored in the jurisprudence of the Supreme Court.
One of the most significant authorities is Vivek Singh v. Romani Singh, (2017) 3 SCC 231.
The case involved a child who had expressed a desire to remain with the father. Yet the Supreme Court did not treat that preference as determinative.
The Court examined the child’s circumstances, his relationship with both parents and, importantly, the developmental and emotional needs of the child. The Supreme Court emphasised that the welfare of the child remains the paramount consideration.
That principle is particularly relevant to the present controversy.
A child may say:
“I want to stay with Dad.”
The Court must certainly listen.
But the judicial inquiry does not end there.
The Court must ask:
i. Why does the child want that?
ii. Is the preference genuinely formed?
iii. Is it the product of affection and familiarity?
iv. Has the child been influenced by one parent?
v. Is the child attempting to protect one parent from emotional distress?
vi. Has the child been exposed to allegations against the other parent?
vii. Which arrangement offers greater stability?
viii. What is happening to the child’s education?
ix. What kind of emotional and developmental support does the child receive?
x. Will the proposed arrangement preserve meaningful relationships with both parents?
These are not questions that a twelve-year-old should be expected to answer.
They are questions for the Court.

4. A CHILD’S WISH AND A CHILD’S WELFARE ARE NOT NECESSARILY THE SAME THING
This distinction deserves to be stated as plainly as possible.
Wish is not welfare.
The two may coincide. Very often they do.
But they are conceptually different.
A child may wish to remain with the parent who has been more permissive. The child may prefer a particular city, school, household or lifestyle. The child may have developed a stronger attachment to the parent with whom he has spent more time.
None of this makes the child’s preference dishonest.
It simply means that preference is one part of the evidentiary picture.
The Court must look at the whole picture.
This is particularly important in matrimonial disputes because children are extraordinarily perceptive. They know when their parents are angry. They hear conversations which parents assume they have not heard. They notice when one parent stops speaking to the other.
And sometimes they begin carrying emotional burdens that do not belong to them.
A child may think:
“If I choose Papa, Mama will be hurt.”
Or:
“If I choose Mama, Papa will be angry.”
That is not a free choice in the true sense of the expression.
The Family Court therefore has to be careful not to turn a child’s interaction with the judge into a referendum on parental loyalty.
THE MADHYA PRADESH HIGH COURT’S EMPHASIS ON THE CHILD’S DEVELOPMENTAL STAGE
The High Court made an observation which, in my view, deserves particular attention.
At twelve, the child is certainly more mature than a very young child. But twelve is also an important period of emotional, mental and physical development.
The Court therefore considered the child’s relationship with his mother, education, emotional support and overall development.
It specifically held that merely because the child had been living with the mother for a considerable period or preferred to remain with her, that preference could not, by itself, decide custody.
This is a carefully balanced proposition.
The Court did not say:
“A twelve-year-old’s preference is irrelevant.”
It said:
“A twelve-year-old’s preference is insufficient, by itself, to decide custody.”
That is a very different proposition.
The first would diminish the child’s voice.
The second protects the child from having to carry the responsibility of an adult judicial decision.

5. WHY CONTINUITY MATTERS
One of the most underestimated factors in custody litigation is continuity.
Lawyers are trained to think in terms of rights, applications, evidence and orders. Children do not experience their lives in those categories.
For a child, continuity means:
i. The Same School;
ii. Familiar Teachers;
iii. Friends;
iv. Neighbourhood;
v. Daily Routine;
vi. Emotional Support;
vii. Familiar Caregivers;
viii. Predictable Surroundings;
ix. And The Ordinary Rhythms Of Childhood.
Every change imposed upon a child carries a psychological cost.
That does not mean custody should never be changed.
Sometimes a change is absolutely necessary.
But when the Court considers competing custodial arrangements, it must ask whether the proposed change actually improves the child’s life or merely satisfies the parent’s desire to obtain custody.
That is where the welfare principle becomes so powerful.
The child is not being transferred from one legal owner to another.
There is no ownership involved.
There is only a judicial decision about the environment in which the child is most likely to flourish.

6. THE SIGNIFICANCE OF THE FATHER’S REMARRIAGE
The Madhya Pradesh High Court also considered the fact that the father had subsequently remarried.
This aspect needs to be understood carefully.
The judgment does not establish any proposition that remarriage makes a parent unfit to have custody.
That would be neither fair nor legally sustainable.
People remarry. Divorced parents remain parents.
What mattered to the Court was whether the father was genuinely prepared to undertake the actual, day-to-day responsibilities of caring for the child and whether the proposed arrangement would provide sufficient stability and emotional support.
For this purpose, the High Court relied upon Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479. In that case, the Supreme Court considered the circumstances surrounding the father’s second marriage and whether he was genuinely prepared to undertake the day-to-day responsibilities associated with custody. The child’s welfare remained the controlling consideration.
The Madhya Pradesh High Court found the principle relevant to the circumstances before it and concluded that continuing the child’s custody with the mother would provide greater stability, continuity of care and emotional support.
Again, the important point is not the remarriage itself.
It is the practical reality of the proposed custodial arrangement.
A custody application cannot succeed merely because a parent says:
“I am the father.”
Nor can it fail merely because the father has remarried.
The Court must look at the actual life that the child will live.

7. CUSTODY IS NOT A PRIZE FOR THE PARENT WHO WINS THE MATRIMONIAL BATTLE
This is where family law differs fundamentally from many other areas of litigation.
In civil litigation, parties fight over rights.
In matrimonial litigation, parties often fight over wrongs.
In custody litigation, however, the Court must resist both tendencies.
The child is not a prize.
The child is not compensation for cruelty.
The child is not evidence of parental superiority.
And, most importantly, the child is not an instrument through which one spouse can punish the other.
I have always believed that this is one of the great dangers of prolonged matrimonial litigation.
A husband may say:
“She is preventing me from seeing my son.”
A wife may say:
“He does not really care about the child.”
Both may sincerely believe what they are saying.
But if those allegations are repeatedly made in front of the child, the child eventually becomes the battlefield.
That is precisely what a Family Court must prevent.

8. THE FATHER MAY LOSE CUSTODY WITHOUT LOSING FATHERHOOD
Another valuable feature of the judgment is that the High Court did not treat physical custody as synonymous with parental extinction.
The Court retained the mother’s custody but protected the father’s continuing relationship with the child through visitation and communication arrangements. The Court directed regular physical meetings and also provided for video communication, subject to the child’s convenience and educational schedule.
This is an important aspect of modern custody jurisprudence.
Physical custody and parental relationship are not the same thing.
A parent may not have primary physical custody but may remain deeply important in a child’s life.
Indeed, the Supreme Court in Ruchi Majoo itself emphasised the importance of maintaining the child’s relationship with the non-custodial parent and recognised visitation and communication as important elements of the child’s healthy development.
In today’s world, physical distance need not mean emotional disappearance.
A telephone call, video call, school event, birthday, holiday or simple conversation can preserve a relationship.
Technology cannot replace a parent.
But it can prevent distance from becoming disappearance.

9. WHAT LAWYERS SHOULD TELL THEIR CLIENTS
There is a practical lesson here for advocates.
When a client comes to chambers and says:
“My child has chosen me,”
the lawyer’s first response should not be:
“Excellent. We have won.”
It should be:
“Let us understand why.”
That single question can change the entire approach to the case.
If the child genuinely prefers one parent, that preference must be respectfully presented to the Court.
But the lawyer should simultaneously help the Court understand the larger welfare picture.
Who handles the child’s schooling?
Who attends parent-teacher meetings?
Who takes the child to the doctor?
Who supervises homework?
Who is available when the child is emotionally distressed?
Who has historically been involved in the child’s daily life?
What is the child’s relationship with grandparents and siblings?
What happens to the child’s education if custody changes?
Can the child maintain meaningful contact with the other parent?
These questions are much more important than the simplistic proposition:
“The child wants me.”

10. AND THERE IS ONE QUESTION PARENTS SHOULD NEVER ASK
There is one question I wish could be permanently removed from the vocabulary of matrimonial disputes:
“Whom do you love more?”
No child should ever be forced to answer it.
A child should not have to choose between the mother who gave him comfort and the father who taught him to ride a bicycle.
He should not have to decide whether loving one parent is a betrayal of the other.
The best custody arrangement is often one that allows the child to stop thinking about custody altogether.
That is the real objective.

11. THE FAMILY COURT MUST LISTEN—BUT IT MUST ALSO PROTECT
The deeper significance of Abhishek Singh lies here.
The Court’s role is not merely to collect the child’s preference and record it.
The Court occupies a protective jurisdiction.
It must listen to the child, but it must also protect the child from the consequences of the child’s own decision where necessary.
That is why the statutory expression “welfare” is deliberately broad.
Welfare includes far more than physical comfort.
It includes emotional security, education, development, stability, meaningful parental relationships and the opportunity to grow without being burdened by the conflict between the adults.
The Supreme Court has repeatedly treated welfare as the paramount consideration in custody matters. Vivek Singh is an especially useful illustration because the child’s expressed preference did not prevent the Supreme Court from independently examining what arrangement best served the child’s development.
The Madhya Pradesh High Court has now applied that principle in a case involving a child who had reached twelve years of age.

12. A JUDGMENT ABOUT CHILDHOOD, NOT MERELY CUSTODY
At first glance, the case may appear to be another dispute between a separated husband and wife.
It is much more than that.
It reminds us that the law must sometimes protect children from being given too much power over decisions they are emotionally incapable of carrying.
There is a strange paradox here.
We want children to have a voice.
But we do not want them to become responsible for the consequences of that voice.
We want them to be heard.
But we do not want them to become witnesses against a parent they love.
We want them to express their feelings.
But we do not want those feelings converted into weapons.
That is why the judicial distinction between preference and welfare is so important.
The child’s preference is evidence.
It is not the decree.
The child’s wishes are relevant.
They are not sovereign.
The child’s voice matters.
But the responsibility for the final decision remains with the Court.

13. THE RULE OF LAW MUST ULTIMATELY PROTECT THE VOICELESS
Family law often deals with the most intimate aspects of human life. It deals with broken marriages, disappointed expectations, parental love, anger, fear and sometimes deep resentment.
That makes it tempting to decide cases emotionally.
But the strength of the law lies precisely in its ability to rise above emotion.
A parent may feel that he or she deserves custody.
The child may feel that he or she wants to remain with one parent.
But neither feeling, standing alone, can replace the judicial duty to determine what serves the child’s welfare.
The Madhya Pradesh High Court has therefore done something more valuable than simply deciding where one twelve-year-old should live.
It has reaffirmed a principle that should remain at the centre of every custody proceeding:
The child is the subject of the Court’s protection, not the object of the parents’ contest.
The law gives the child a voice because the child matters.
But the law does not make the child the judge because the child must also be protected.
And perhaps that is the finest expression of the welfare principle.
When a twelve-year-old says, “I want to live with Papa,” the Court must listen.
When he says, “I want to live with Mama,” the Court must listen.
But after listening to the child, the judge must still do what the law requires.
The judge must look at the whole life of the child—not merely the sentence spoken inside the courtroom.
Because in the end, custody is not about who wins the child. It is about ensuring that the child does not lose his childhood.

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