Can A Minor Child Choose To Stay With Someone Else Against Will Of Its Guardian? SC Expresses Its Reservation About Gujarat HC Observations [Read Order]

The Supreme Court has expressed its reservation about some observations made by the Gujarat High Court with regard to choice of a minor child to stay with someone else other than its guardian, though it did not interfere with the order.

A bench of Justice AK Sikri and Justice Ashok Bhushan said it is dismissing the Special Leave Petition as it is not inclined to go into the legal issue.

The order reads: “Since by the impugned order the custody of 07 years old child is directed to be handed over to his natural mother, we are not inclined to go into the legal issue(s) raised in this petition filed under Article 136 of the Constitution. This petition is accordingly dismissed. Although we have some reservations in respect of the observations made by the High Court in the last portion of Para 9 of the impugned order.”

Justice GR Udhwani of Gujarat High Court had made some observations in his order dismissing a revision petition against a magistrate order directing the grandparents of a child aged 7 years to deliver the custody to her mother.

The father of the child, in this case, had died and he was being taken care of by his grandparents.  The mother had approached the court seeking custody of her son.

The high court had observed that the authority to take all the decisions in case of minor under the age of 18 years would lie with the natural guardian or any other guardian lawfully appointed.

Upholding the magistrate’s order, the high court had made this observation: “Even if the minor voluntarily chooses to stay with some person other than his/her guardian, his custody cannot be retained anymore by that person against the will of the guardian. If in such circumstances, the custody is not delivered, in the opinion of this court, such an act would amount to an offence punishable under section 342 read with section 340 of IPC.”

This observation was taken note of by the Supreme Court bench, which during the hearing, reportedly remarked: “Welfare of the child is the paramount consideration in such cases. So how can it be laid down that even the child cannot express his desire and that a guardian once appointed will have the custody for all times may whatever happens? We express our reservations to this principle."