VidhiSangh

Supreme Court of India · 09/06/2022

SWAMINATHAN KUNCHU ACHARYA versus STATE OF GUJARAT & ORS.

[2022] 6 S.C.R. 727 · 2022 INSC 639

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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

  1. 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.
  2. 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

Held

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.

Judgment PDF: Supreme Court of India, [2022] 6 S.C.R. 727.