Summary
A five-year-old boy lost both parents to Covid-19 in Ahmedabad in May–June 2021. His 71-year-old paternal grandfather sought a writ of habeas corpus for his custody from the maternal aunt; the Gujarat High Court gave the grandparents interim custody but by its final order handed the child to the aunt, a 46-year-old unmarried Central Government employee living in a joint family in Dahod, reasoning that the grandparents were old pensioners and she was younger, better qualified and had a larger family. The Supreme Court set that order aside and continued custody with the grandparents.
Issues
- Whether, in deciding custody of an orphaned minor between paternal grandparents and a maternal aunt, the grandparents' age and pension income and the aunt's youth, employment and larger family are germane considerations tilting the balance against the grandparents.
- What weight attaches to the child's expressed preference and to the absence of any adverse finding during a prolonged period of interim custody.
Provisions considered
- Articles 226 (habeas corpus) and 136, Constitution of IndiaThe High Court's custody order in the habeas corpus petition was set aside as unsustainable on the facts; the Court struck the balance afresh on the paramount consideration of the child's welfare (Perry Kansagra; Ashish Ranjan). (¶¶ 1, 7, 8)
- Section 7, Guardians and Wards Act, 1890The custody order was expressly made subject to the final outcome of the guardianship proceedings pending before the competent court. (¶ 8)
Held
- The reasons which weighed with the High Court — the grandparents' ages of 71 and 63, their dependence on pension, and the aunt's youth, government employment and bigger family — may be relevant but are not germane; there can be no presumption that an unmarried aunt with an independent income would take better care than paternal grandparents, who in our society are emotionally more attached and, being retired, can devote more time to the child. Income, age or the size of the family cannot be the sole criteria. (¶¶ 7.1, 7.2)
- The child had expressed his inclination to stay with his grandparents, custody had remained with them under the interim order without any grievance or finding that they acted to his detriment, they had secured his admission to a school in Ahmedabad, a metro city offering better education than Dahod; the balance therefore tilts in favour of the grandparents, without doubting that the aunt would also care for her deceased sister's son. (¶¶ 7.1, 7.2)
- Custody shall continue with the paternal grandparents, who must ensure the child's education in Ahmedabad; the maternal aunt shall have visitation preferably once a month, holiday stays subject to the child's wishes and video calls, and both families are requested to act cordially in the child's interest. (¶ 8)
Result
Appeal allowed; the Gujarat High Court's judgment of 02.05.2022 in Special Criminal Application No. 6708 of 2021 handing custody of the minor to the maternal aunt quashed, custody to continue with the paternal grandparents subject to the pending proceedings under Section 7 of the Guardians and Wards Act, with visitation rights to the aunt. No order as to costs.