In Debarati Bhunia Chakraborty v. Suman Sankar Bhunia (2026 INSC 1043, Civil Appeal No. 12774 of 2026), decided on 23 September 2026, the Supreme Court allowed a mother, for the present, to take her two children to the United Kingdom and kept a High Court custody order in the father’s favour on hold, holding that the best interest of the children is the primary consideration in custody. The Court said that a mother’s job changes after leaving a marriage are not a “nomadic life”, and that a father against whom a charge-sheet has been filed under the POCSO Act cannot be given custody while that case is pending. The order is interim: the appeals will be heard again in January 2027.
At a glance
- Case: Debarati Bhunia Chakraborty v. Suman Sankar Bhunia, Civil Appeals arising out of SLP (C) Nos. 4306 and 1714 of 2026; 2026 INSC 1043
- Court and bench: Supreme Court of India; Justices Vikram Nath and Sandeep Mehta (order by Justice Mehta)
- Date: 23 September 2026
- Challenged: a Delhi High Court judgment affirming a Family Court order that gave sole custody of both children to the father
- Held, for now: the stay on the High Court judgment is made absolute until the appeals are decided; the mother may take the children to the UK and enrol them in school there
- Next step: the appeals are listed for hearing in January 2027
What happened
The parties married in 2011 and have two children, now about 13 and 7. The mother left the matrimonial home around 2018 and has since worked at different academic institutions in India and then in the UK. The Family Court gave the father sole custody, with visitation to the mother, and the Delhi High Court upheld that in January 2026. Both courts treated the mother’s frequent changes of job and residence as a “nomadic” lifestyle.
During the dispute the elder child made a disclosure to a psychiatrist, and a police case under the Protection of Children from Sexual Offences (POCSO) Act followed. A charge-sheet has been filed. These are allegations in a pending criminal case, not findings, and the father is challenging the case before the Calcutta High Court. The mother then asked to relocate the children to the UK, where she has a job and where she says a school place is assured.
What the Court held
On the “nomadic” label, the Court called it “absolutely unjustified and far removed from reality”. It said that after leaving the marriage the mother was concerned for the children’s well-being and “bound to make efforts to secure a respectable, well-paying job”.
On the criminal case, the Court said that “once the police has filed a chargesheet after investigation” under the POCSO Act, “granting custody of the child to the respondent-father would be totally unwarranted and unjustified”. It added that “the primary consideration while deciding the issue of custody has to be the best interest of the children”, and referred to the principles in Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015.
On the High Court’s remarks that the allegations looked “motivated” and a “counterblast”, the Supreme Court held they were “out of place, uncalled for and premature” and expunged them, directing that they not be taken into account in the criminal case. It also directed that the Calcutta High Court decide the father’s quashing petition independently, without being influenced by this order.
On relocation, the Court considered the children’s continuing reluctance to be with the father, the mother’s much stronger finances, and the father’s income, and held that refusing relocation “would further aggravate the complete parental alienation of the children”. It permitted the mother, “for the present”, to take the children to the UK, on conditions:
- an affidavit with details of the children’s UK schooling within six weeks;
- an undertaking to produce the children before this or any other court whenever directed.
Is this new law?
No. The welfare test is long settled; Section 17 of the Guardians and Wards Act, 1890 and Section 13 of the Hindu Minority and Guardianship Act, 1956 already make the child’s welfare the guide, and Section 26 of the Hindu Marriage Act, 1955 lets a divorce court decide custody. Three cautions apply:
- It is an interim order. The permission is “for the present”, and the appeals are still to be heard.
- It turns on its facts: a charge-sheet, a child’s disclosure, financial position and the children’s reluctance. It does not say a mother can always relocate with children, or that any accusation bars a parent from custody. The Court spoke of a parent who has been charge-sheeted.
- It does not decide the criminal case. That is for the criminal court.
What it means for you
If you are a parent seeking to relocate with a child:
- Do not move the child first and ask later. Seek the court’s permission, with the job offer, the school place and a proposed contact plan.
- Expect to give an undertaking to bring the child back when the court directs.
- Job changes made for a good reason, and explained, are not held against you merely because they are frequent.
If you are the other parent:
- Courts look at the child’s actual settling-in, the reports of counsellors and the child’s own voice, not only at legal rights.
- Consistent, calm effort at contact is noted. A single good visit is not treated as proof that a relationship has healed (the Court said so in this case).
- A pending criminal case involving the child will weigh heavily on custody until it is resolved.
Either way: keep school, medical and counsellor records, a dated record of visits, and every court order together, and comply with each condition by its date.
How I approach these cases
I begin with the child’s routine, schooling and health, and the orders already in place. Before anything is filed I ask whether an agreed parenting plan is possible. Where court is unavoidable, I ask for interim arrangements early and keep the pleadings on the child’s welfare rather than on blame. I do not promise an outcome; no advocate can say how a court will weigh a child’s best interest. Details of the forums and process are on my family law lawyer in Delhi page.
Frequently asked questions
Can a mother take her children abroad without the father’s consent?
Where a custody dispute is pending or an order exists, she should seek the court’s permission first. Moving a child in breach of an order can count against that parent.
Does a pending criminal case against a parent end that parent’s custody claim?
Not automatically. In this case the Court relied on a filed charge-sheet involving a child, together with other facts. Each case is decided on the child’s welfare.
Is the Supreme Court’s decision final?
No. The relocation is allowed “for the present”, the stay continues until the appeals are disposed of, and the appeals are listed for January 2027.
Does the child’s wish matter?
Yes. A court may speak to an older child or consider a counsellor’s report, but the preference is one factor, not binding.
Is job-hopping a ground to deny a mother custody?
Not by itself. The Court held that branding a mother’s career moves a “nomadic life” was unjustified when they were made to secure a better future for the family.
Sources
- Supreme Court order of 23 September 2026 (text)
- LiveLaw report
- SCC Online report
- Deccan Herald report
This post is general information, not advice on any particular case.
Blog › Family & Matrimonial Guide
How Advocate Kanisth Manuja handles these matters, step by step.
Advocate, Delhi High Court (Chamber S-307). He writes these guides to explain Delhi court procedure and current law in plain English. About him →
More guides
This guide is general legal information about the law as it stands, not legal advice on any particular matter.