The Supreme Court In Swaminathan Kunchu Acharya v. State of Gujarat, a bench of Justice MR Shah and Justice Anirudhha Bose, held that income, age, and/or the size of the family cannot be the sole criteria for tilting the balance and not giving the grandson’s custody to the paternal grandparents.
The 5-year-old who had lost both his parents to COVID-19 and the Gujarat High Court had handed over the custody to his maternal aunt and not his grandparents.
The following criteria weighed the High Court’s decision to hand over custody of the minor to the maternal aunt:
- The paternal grandparents are in their eighties – 71 and 63 years old, respectively
- while the maternal aunt is 46 years old.
- The maternal aunt has a larger family; the grandfather is a retired government employee, based on the pension against which the maternal aunt is a government employee, she will be better able to care for the minor.
The High Court, on the other hand, overlooked the fact that the youngster had expressed a desire to live with his paternal grandparents. In addition, the grandpa retained custody as a result of the High Court’s interim order. The High Court found no evidence that the paternal grandparents failed to properly care for the minor throughout the interim custody period.
As a result, the Supreme Court stated that while the reasons/grounds for granting custody to the maternal aunt may be important, they are not germane.
“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.”
The Court Stated
The Court also took into account the fact that the grandparents were able to enroll the kid in an Ahmedabad school.
The other factors the court relied upon are, In comparison to Dahod, the minor will receive a superior education in Ahmedabad, which is a city. The paternal grandparents, as retirees, would be able to devote more time and better care for the minors than the maternal aunt, who works for the government. Income, age, and/or having a larger family cannot be the main determining factors in deciding whether or not to give the grandchild to the paternal grandparents. The High Court found no evidence that the paternal grandparents failed to provide sufficient care for the little grandson while they held temporary custody of the corpus and/or behaved in the kid’s best interests.
The Court stated that, while it cannot be said that the maternal aunt will not take proper care of the minor son of her deceased sister, the High Court made an error in not handing over and/or continuing custody of the minor to the paternal grandparents based on the facts and circumstances of the case.
“if the balance is to be struck between the paternal grandparents and the maternal aunt, for the reasons stated above, the balance would certainly tilt in favour of the paternal grandparents.”
The Court Stated
The Court, on the other hand, ordered that the maternal aunt have visitation rights with the minor on a regular basis, preferably once a month, subject to the child’s convenience. During vacations and/or holidays, the grandparents may allow the minor to visit and remain with the maternal aunt, according to the minor’s wishes and convenience, and provided that it does not interfere with the minor’s interests, including his education and extracurricular activities. It is also planned that the corpus and maternal aunt will have regular video calls.
The Court held order on 9.06.2022
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