The Supreme Court recently comprising of a bench of Justices MR Shah and Aniruddha Bose while giving custody of a minor (5) to his grandfather, who had lost both of his parents to Covid observed that income, age and a bigger family can’t be the sole criteria to decide in child custody matters. (Swaminathan Kunchu Acharya vs State of Gujarat)
Facts of the case
The appellant aged 71 years is the grandfather of the corpus. Both the parents of the corpus who were working and residing at Ahmedabad passed away during the second wave of Covid-19. A writ petition was filed by the appellant for the production of corpus, Pranav Acharya aged 5 years before the High Court of Gujarat at Ahmedabad. In the writ petition filed it was alleged that the Respondent No.4 was not allowing them to enter the house of his son and daughter-in-law to take the belongings of the corpus. Also not allowed to meet the corpus. The interim custody of the minor corpus was given to the appellant until the final disposal of the writ petition before the High Court. The High Court handed over the body to Respondent No.4 who is the maternal aunt of the corpus. Aggrieved by that order the appellant filed this current appeal seeking the custody of the child.
Issues raised
Whether higher income, age and bigger family be the sole criteria in child custody matters?
Contention of the Parties
The appellant-grandfather contended that merely because he is aged 71 years and his wife is aged 63 years, it cannot be presumed that the paternal grandparents would not be in a position to take better care of the grandson.
The respondent contended that the maternal aunt would be in a better position to look after and take care of the boy than the appellant – paternal grandfather.
Courts Observation and Judgment
The bench at the very outset taking note of the facts of the case and contention of the Parties remarked, "so far as the reasons assigned by the High Court while handing over the custody of the minor to the maternal aunt reproduced hereinabove, we are of the opinion that those reasons/grounds may be relevant but not germane. There cannot be any presumption that the maternal aunt being unmarried having an independent income; younger than the paternal grandparents and having a bigger family would take better care than the paternal grandparents. In our society still the paternal grandparents would always take better care of their grandson. One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson. It is said that the grandparents love the interest rather than the principle. Emotionally also the grandparents will always take care better care of their grandson. Grand Parents are more attached emotionally with grandchildren."
The bench further noted that it was reported that they have also managed to get admission of the minor in a school in Ahmedabad. The minor will get better education in Ahmedabad, which is a Metro City compared to the education in Dahod. Being a retired person, the paternal grandparents would devote more time and take care of minor better than respondent No. 4 who is serving in the government department. Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents.
The bench observed, "At the cost of repetition, it is observed that neither the High Court has observed anything against the appellant or the paternal grandparents that they have not taken proper care of the minor grandson while interim custody of the corpus was them and/or they acted detrimental to the interest of the minor. We appreciate the efforts made by the High Court and it was very difficult choice by the High Court. However, on the facts and circumstances of the case narrated above and for the reasons stated above, we are of the opinion that the High Court has committed an error in not handing over and/or continuing the custody of the corpus – grandson to the appellant – paternal grandparents and to give custody of the corpus to respondent No. 4 – maternal aunt of the corpus. We are of the opinion that if the balance is to be struck between the paternal grandparents and the maternal aunt, for the reasons stated above, the balance would certainly tilt in favour of the paternal grandparents. However, we may not be misunderstood that the maternal aunt may not take proper care of the minor son of her deceased sister."
The bench allowing the appeal remarked, "In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court handing over the custody of the minor corpus to respondent No. 4 – maternal aunt rather than handing over the custody of the minor corpus to the appellant – paternal grandfather is unsustainable and the same deserves to be quashed and set aside and is accordingly, quashed and set aside. However, it is also made clear that the present order shall subject to the final outcome of the proceedings under Section 7 of the Guardians and Wards Act, pending before the competent court."
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