Read Order: Swaminathan Kunchu Acharya v. State of Gujarat & Ors 

Tulip Kanth

New Delhi, June 10, 2022: In a case where a 5-yr-old boy lost his parents during the second wave of COVID-19, the Supreme Court has granted his custody to his paternal grandparents and set aside the impugned judgment passed by the Gujarat High Court handing over the custody of the minor to his maternal aunt.

The Bench of Justice M.R.Shah and Justice Aniruddha Bose said, “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.”

The events that led to the filing of the present appeal were that parents of the minor child died during the the second wave of Covid-19.The appellant (paternal grandfather) approached the High Court for a writ of habeas corpus alleging that the fourth respondent-maternal aunt was not allowing them to enter the house of his son and daughter in law and sought custody of the minor boy aged 5 years. By the impugned judgment, the High Court had given the custody of the minor to his maternal aunt. Thus, feeling aggrieved by this Order, the paternal grandfather approached the Apex Court.

The Bench begun discussion on this matter by stating the aspects that were looked into by the High Court while granting the custody to the aunt. These included certain facets such as the paternal grandparents are old aged – 71 and 63 years against which the aunt is aged 46 years and she has a bigger family and is also a government employee. On this scenario, the Bench commented, “ 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.”

Noting that the the appellant is staying in Ahmedabad and aunt is staying in Dahod, which is a tribal area/district, the Apex Court also considered the fact that the minor had shown his willingness to stay with the appellant and nothing was observed by the High Court that during the interim custody period, the appellant – paternal grandparents acted detrimental to the interest of the minor and/or they did not take proper care. Hence, the Bench observed that in our society still the paternal grandparents would always take better care of their grandson.

Keeping in view that the minor showed his inclination to stay with the appellant, the Bench directed the paternal grandparents to take care of the minor and also granted the visitation rights to the aunt. The Bench concluded this matter by saying that both, paternal grandparents and maternal aunt & her family (on maternal side) should act jointly and have cordial relations which shall be in the larger interest of the minor. The Top Court also requested all the concerned persons to look into the future of the minor, who unfortunately, has lost his parents at the age of five years only.

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