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'Child's Welfare Paramount': Gujarat High Court Grants Custody Of 5-Yr Old Orphan To Maternal Aunt Over Paternal Grandparents
PRIYANKA PREET
4 May 2022 12:00 PM IST
The Gujarat High Court recently granted custody of a 5 years old child, whose parents had passed away during Covid-19 pandemic, to his maternal aunt, over the claim made by his paternal grandparents.The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt observed,"The court while deciding the child custody cases is not bound by the mere legal right of the parent or...
The Gujarat High Court recently granted custody of a 5 years old child, whose parents had passed away during Covid-19 pandemic, to his maternal aunt, over the claim made by his paternal grandparents.
The Bench comprising Justice Sonia Gokani and Justice Mauna Bhatt observed,
"The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statues govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child."
The Court was hearing a habeas corpus petition filed by the paternal grandfather of the corpus versus the maternal uncle, the maternal aunt and the maternal grandfather. The facts of the case were that the corpus' parents had passed away due to COVID during the pandemic in 2021 while the custody of the corpus was with the maternal aunt. It was alleged that ever since, the aunt had not allowed the Petitioner to enter the house of his son and daughter-in-law to take their belongings. Aggrieved by the same, the Petitioner sought custody of the corpus.
It was averred that the Petitioner was a retired Central Government employee residing in his own house in Ahmedabad along with his wife with a comfortable lifestyle and good health. The parents of the corpus, while alive, had resided separately in Ahmedabad, as well. Consequently, the corpus was habituated to living in the city and was unwilling to reside in Dahod with his maternal aunt. The Petitioner also had a younger son who was well-settled in Coimbatore and could be called upon for any help. Therefore, in the larger interest of the child, it would be beneficial for the corpus to reside with the grandparents. The Petitioner expressed no objection to the Respondents from taking the corpus on weekends or video-calling him regularly.
Per contra, the Respondent parties submitted that the Petitioner had not accepted the marriage of his son and daughter-in-law due to difference in caste and was absent during the wedding. Resultantly, the parents of the corpus had to reside separately to maintain peace and tranquility. The maternal family of the corpus had taken care of the corpus' mother during her illness and even conducted her last rites. Further, the couple had received no support from the paternal family and therefore, the maternal family had leased the house to them. Additionally, the maternal family was a joint family with a comfortable lifestyle capable of supporting the corpus.
The High Court noted that despite several efforts of amicably settling the dispute through mediation considering the immense trauma and agony both parties and the corpus had underwent, the parties were not ready to compromise and settle. As a result, while relying on Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67, the Bench emphasised that in considering the welfare of the child, technical objections could not come in the way. Further reference was made to Vasudha Sethi v. Kiran V Bhaskar 2022 SCC Online SC 43 where the Supreme Court had held:
"What is in the welfare of the child depends on several factors. A custody dispute involves human issues which are always complex and complicated. There can never be a straight jacket formula to decide the issue of custody of a minor child as what is in the paramount interest of a minor is always a question of fact."
Accordingly, keeping in view the precedents, the High Court deemed it fit to grant custody of the corpus to the maternal aunt.
The Bench noted that the aunt was aged 46 years compared to the grandparents of the corpus who were older. Further, the aunt was not married and had fewer responsibilities. It was also not feasible for the younger son of the Petitioner to commute from Coimbatore regularly for the corpus. Additionally, staying in a joint family with the maternal aunt would benefit the corpus more, per the Bench.
"We are not ignorant of the fact that for the Petitioner and his wife, having seen their children dying in front of them, Corpus is their ray of life and hope. However, welfare of the Corpus being the paramount consideration as of now, sentiments expressed by both the sides alone may not act as guiding factor."
It was directed that the Petitioner give custody of the corpus to the maternal aunt on 31st May, 2022 while education of the corpus was to commence at Dahod from the new academic year. In order to balance the equities, the High Court directed the aunt to ensure that the paternal grandparents meet the corpus regularly (twice a month) and visit them during vacations and holidays.
Case Title: Swaminathan Kunchu Acharya vs State Of Gujarat
Citation: 2022 LiveLaw (Guj) 144
Case No.: R/SCR.A/6708/2021
