Case Title:
Swaminathan Kunchu Acharya Vs State of Gujarat & Ors
Date:
June 09, 2022
Bench:
Justice M.R Shah
Justice Aniruddha Bose
Parties:
Appellants – Swaminathan Kunchu Acharya
Respondents – State of Gujarat and Ors.
Subject
An appeal was filed by the appellant aggrieved by the order passed by the High Court of Gujarat at Ahmedabad giving custody of the minor child to the maternal aunt and not the paternal grandfather on the basis of higher income and bigger family.
Overview
- The appellant aged 71 years is the grandfather of the corpus.
- Both the parents of the corpus who were working and residing at Ahmedabad passed away during the second wave of Covid-19.
- A writ petition was filed by the appellant for the production of corpus, Pranav Acharya aged 5 years before the High Court of Gujarat at Ahmedabad.
- In the writ petition filed it was alleged that the Respondent No.4 was not allowing them to enter the house of his son and daughter-in-law to take the belongings of the corpus. Also not allowed to meet the corpus.
- The interim custody of the minor corpus was given to the appellant until the final disposal of the writ petition before the High Court.
- The High Court handed over the body to Respondent No.4 who is the maternal aunt of the corpus.
- Aggrieved by that order the appellant filed this current appeal seeking the custody of the child.
Issues raised
- Whether higher income, age and bigger family be the sole criteria in child custody matters?
Advancements made by the Appellants
- The learned counsel for the appellants argued that the High Court had provided no findings as to show that the paternal grandfather would not be able to take care of his grandson.
- Merely because they are aged and are of the Senior Citizen category does not invalidate them and show that they cannot take better care of the child.
- Merely because the maternal aunt was having a bigger family cannot be presumed that they will take better care of the child.
- The child had not stated anything against the paternal grandparents on how he was being taken care of.
- The High Court had committed an error in handing over the custody of the corpus to Respondent No.4 and not to the appellant.
Advancements made by the Respondents
- The learned counsel for the Respondents argued that the Respondent No.4 the maternal aunt of the corpus was in good health to look after the child.
- The maternal aunt was aged 46 years and had a decent salary which was enough to take care of the child.
- Since the appellant was aged 71 years, the maternal aunt was in a better position to take care of the child than the appellant.
- The High Court observed that all relevant factors for a wholesome development of the child could be provided by the maternal aunt.
- The maternal aunt also got the child admitted to St. Stephen’s School, Dahod which was a well reputed school.
- The appellant on the other hand was living on pension and did not have enough facilities to provide the child with the best care.
- The learned counsel relied upon the cases of Perry Kansagra Vs. Smriti Madan Kansagra, (2019) 20 SCC 753 and Ashish Ranjan Vs. Anupma Tandon and Anr, (2010) 14 SCC 274 wherein it was stated that welfare and interest of the child remains the paramount consideration for custody of a minor child.
- The learned counsel prayed to dismiss the appeal by stating the above-mentioned.
Judgment Analysis
- The Court observed that the corpus had shown inclination to stay with the appellant that is the paternal grandparents of the child.
- The custody of the minor child remained with the grandfather throughout interim period.
- Nothing was observed during the interim custody period showing that the grandparents acted detrimental to the interest of the minor. The minor had shown more willingness to stay with the appellant.
- It cannot be presumed that the maternal aunt being unmarried and having independent income would be able to take better care than the paternal grandparents. One must not doubt the ability of grandparents to take care of their grandson.
- The grandparents had also managed to get the minor child admitted to a school in Ahmedabad.
- The grandparents being retired can devote more time and take better care of the minor than the maternal aunt.
- Income and bigger family cannot be the sole criteria to tilt the balance and not give custody of a minor child to his grandparents.
- The High Court had not observed anything against the appellant that they have not taken proper care of the minor child during the interim custody period.
Conclusion
The Hon’ble Court concluded by stating that the order passed by the High Court was unsustainable and deserved to be quashed and set aside. The custody of the minor corpus was to be continued with the appellant – paternal grandparents. The maternal aunt was provided with visitation rights.
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