Supreme Court: In a case relating to the custody of a 5-year-old who had lost both his parents to COVID-19 and the Gujarat High Court had handed over the custody to his maternal aunt and not his grand parents, the bench of MR Shah* and Anirudhha Bose, JJ has held that 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.
While handing over the custody of the minor to the maternal aunt, the following factors had weighed in with the High Court:
- The paternal grandparents are old age – 71 and 63 years respectively against which the maternal aunt is aged 46 years
- The maternal aunt is having a bigger family;
- The grandfather is a retired government servant – depending upon the pension against which the maternal aunt is a government employee and therefore she will be in a better position to take care of the minor.
However, what the High Court failed to consider was that the child had shown his inclination to stay with the paternal grandparents. Also, the custody remained with the grandfather pursuant to the interim order passed by the High Court. Nothing was observed by the High Court that during the interim custody period, the paternal grandparents did not take proper care of the minor.
The Supreme Court, hence, observed that the reasons/grounds for granting custody to the maternal aunt 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 Court also considered the fact that the grandparents have also managed to get admission of the minor in a school in Ahmedabad.
Hence, the following factors weighed in with the Supreme Court while granting the custody to the grandparents:
- 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 the maternal aunt 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 High Court has not observed anything against 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.
Stating that it was a very difficult choice as it cannot be said that the maternal aunt may not take proper care of the minor son of her deceased sister, the Court said that on the facts and circumstances of the case, the High Court committed an error in not handing over and/or continuing the custody of the minor to the paternal grandparents. The Court observed 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.”
The Court, however, directed that
- the maternal aunt shall have visitation right to meet the minor on regular basis preferably once in a month, subject to the convenience of the child.
- during the vacation and/or holidays the grandparents may permit the minor to visit and stay with the maternal aunt, of course subject to wishes and convenience of the minor and it may not adversely affect the interest of the minor including his education and even the extra curriculum activities.
- It is also expected to have video calling between the corpus and maternal aunt on regular basis.
[Swaminathan Kunchu Acharya v. State of Gujarat, 2022 SCC OnLine SC 733, decided on 09.06.2022]
*Judgment by: Justice MR Shah
For grandparents: Advocate D.N. Ray
For Maternal Aunt: Advocate Rauf Rahim