Income, Age, Bigger Family Cannot Be Sole Criteria In Child- Custody Matters : Supreme Court

The Supreme Court observed that income, age , bigger family cannot be the sole criteria to tilt balance in child- custody cases.

The bench comprising Justices MR Shah and Aniruddha Bose observed thus while it granted custody of five year boy who lost his parents due to covid to his paternal grandfather.

In this case, the paternal grandfather of the boy had approached the High Court by filing a writ petition (habeas corpus) alleging that the boy's maternal aunt is not allowing them to enter the house of his son and daughter in law and that he is not even permitted to meet the boy. While disposing of the petition, the High Court gave the custody to the maternal aunt. Aggrieved with this, the grandfather approached the High Court.

Before the Apex Court, the appellant-grandfather contended that merely because he is aged 71 years and his wife is aged 63 years, it cannot be presumed that the paternal grandparents would not be in a position to take better care of the grandson. The respondent contended that the maternal aunt would be in a better position to look after and take care of the boy than the appellant – paternal grandfather.

While agreeing with the submissions made by the appellant-grand father, the court observed:

"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."

While setting aside the High Court order, the bench observed 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 . 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, who unfortunately, has lost his parents at the age of five years only. With this hope and trust, we close the present proceedings.", the court observed while disposing the appeal.

Headnotes

Swaminathan Kunchu Acharya vs State of Gujarat | 2022 LiveLaw (SC) 547 | CrA 898 OF 2022 | 9 June 2022

Coram: Justices MR Shah and Aniruddha Bose

Counsel : Adv D.N. Ray for appellant, Adv Rauf Rahim for respondent

Headnotes

Child Custody - Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance in custody matters - One should not doubt the capacity and/or ability of the paternal grandparents to take care of their grandson - Grand Parents are more attached emotionally with grandchildren. (Para 7.2) 

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