Custody – Of minor child – 5 year old child lost his parents in the Covid-19 pandemic – Appellant is paternal grandfather of the child, and he and his wife– paternal grandparents sought custody of the child – Writ petition seeking writ of habeas corpus filed by appellant – Contesting Respondent No.4 is maternal aunt of the child – High Court handed over custody to respondent No.4 – Held: On facts and circumstances, High Court erred in not handing over and/or continuing the custody of the corpus–grandson to appellant / paternal grandparents – Income and/or the age and/or the bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents – 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 – Appellant/paternal grandparents even managed to get admission of the minor in a school in Ahmedabad (where appellant was staying) – The minor will get better education in Ahmedabad, which is a Metro City compared to education in Dahod where respondent no.4 was staying – Further, being a retired person, the appellant / paternal grandparents would devote more time and take care of minor better than respondent No.4 who is serving in the government department – If balance is to be struck between the paternal grandparents and the maternal aunt, the balance would certainly tilt in favour of paternal grandparents – Impugned judgment of High Court quashed and set aside – However, the present order shall be subject to final outcome of the proceedings u/s.7 of the Guardians and Wards Act, pending before the competent court – Custody of minor corpus to continue with appellant /paternal grandparents, who are directed to take care of the minor – However, respondent No.4 shall have visitation rights – Further, during vacation and/or holidays the appellant may permit the corpus to visit and stay with respondent No. 4, subject to wishes and convenience of the corpus and without adversely affecting the interest of the corpus including his education and even extra curriculum activities – Paternal grandparents as well as maternal aunt & her family (on maternal side) to act jointly and cordially and have cordial relations in the larger interest of the minor – Writ petition – Writ of habeas corpus.
Perry Kansagra v. Smriti Madan Kansagra, (2019) 20 SCC 753 and Ashish Ranjan v. Anupma Tandon and
Anr. (2010) 14 SCC 274 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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