Supreme Court of India was dealing with the petition challenging the judgment and order dated 02.05.2022 passed by the High Court of Gujarat at Ahmedabad in Special Criminal Application, by which the High Court has handed over the custody of the corpus to the contesting respondent No. 4 herein – maternal aunt of the corpus.
Brief Facts:
The corpus and his parents were staying happily. Unfortunately, both the parents of the corpus died during the second wave of Covid19. While the parents of the corpus were infected with Covid19, the minor corpus was residing with respondent No. 4 herein – maternal aunt. The paternal grandfather approached the High Court for writ of habeas corpus alleging that maternal aunt is not allowing them to enter the house of his son and daughter in law and to take belongings of corpus. It was also alleged that the appellant is not even permitted to meet the corpus. Therefore, the paternal grandfather sought custody of the minor corpus aged 5 years. The High Court has given the custody of the minor corpus to maternal aunt. The High Court has also further observed that it is expected that respondent No. 4 to provide paternal grandparents a right to meet the corpus on regular basis, preferably twice in a month, whenever convenient to both the families.
Appellant’s Contention:
Learned counsel for the appellant submitted that the High Court has committed a grave/serious error in directing to handover the custody of corpus to respondent No. 4 who is the maternal aunt of corpus. It was submitted that as such no valid reasons are given by the High Court on not to give/continue the custody of corpus with the paternal grandparents. It was submitted that merely because the paternal grandfather is aged 71 years and his wife is aged 63 years and therefore, to presume that the paternal grandparents would not be in a position to take better care of the grandson cannot be accepted. It was submitted that there cannot be such a presumption.
Respondent’s Contention:
Learned Counsel for the respondent submitted that when by giving cogent reasons and looking to the welfare and larger interest of the child, when the High Court has directed to handover the custody of the corpus to maternal aunt, the same may not be interfered with by this Court in exercise of powers under Article 136 of the Constitution of India. It was submitted that maternal aunt is a spinster and in good health to look after, care and devote attention towards the welfare and upbringing of the corpus.
SC’s Observations:
After hearing both the sides SC stated that 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.
SC further stated that 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.
SC observed that 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 maternal aunt of the corpus. SC stated 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.
SC stated that the impugned judgment and order passed by the High Court handing over the custody of the minor corpus to maternal aunt rather than handing over the custody of the minor corpus to the paternal grandfather is unsustainable and the same deserves to be quashed and set aside.
SC Held:
After evaluating submissions made by both the parties the SC held that “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. We request both, paternal grandparents and maternal aunt & her family (on maternal side) to act jointly and cordially and have cordial relations which shall be in the larger interest of the minor Pranav Acharya. We request to all the concerned to forget bitterness and forget the past and look in the future taking into consideration the future of the minor Pranav Acharya, who unfortunately, has lost his parents at the age of five years only. With this hope and trust, we close the present proceedings.”
Case Title: Swaminathan Kunchu Acharya v. State of Gujarat & Ors.
Bench: J. M.R. Shah and J. Aniruddha Bose
Citation: CRIMINAL APPEAL NO. 898 OF 2022
Decided on: 09th June, 2022
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