HC permits aunt to retain custody of 4-year-old

A single-judge bench of justice Riyaz Chagla also said the child started staying with his aunt almost immediately after birth, and hence, was emotionally attached to her. The order – which came after the woman’s brother sought custody of the child – was passed on October 5 but was made public on Friday

A woman, who brought up her four-year-old nephew after her brother handed him over shortly after birth, is the legal guardian of the child, the Bombay high court has ruled, allowing her to retain his custody and saying the boy’s welfare would be better served by keeping him with his aunt rather than his biological parents.

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A single-judge bench of justice Riyaz Chagla also said the child started staying with his aunt almost immediately after birth, and hence, was emotionally attached to her. The order – which came after the woman’s brother sought custody of the child – was passed on October 5 but was made public on Friday.

“Having taken into consideration the welfare of the minor child, in my view, the welfare of the minor child will be best served by the Petitioner and that the Petitioner is required to be declared the true and lawful guardian of the minor child,” the court order said.

The woman, a childless widow, is a resident of Parel in Mumbai. She said in her petition that the biological parents – her brother and sister-in-law – had voluntarily handed the child over to her soon after he was born. Since then, she was taking care of the boy as his mother was suffering from psychological issues, the plea said.

But the relationship between her and her brother soured, and on March 11, 2021, the child’s father filed a complaint with the police, alleging that his sister had abducted his minor son and was illegally keeping him with her.

After the police called her for enquiry, she approached the high court and sought an order declaring her the lawful guardian of the child. In her petition, she said that she worked in the corporate sector and her husband was a businessman, and that both had sufficient means to take care of herself and the minor. On the other hand, her petition said, the biological parents were not in a financial condition to take care of the child.

In their response, the child’s parents reiterated their charge that she had forcibly taken custody of their child. The father conceded that they were poor, but informed the bench that he had recently got a job and they were now in a position to take care of their son.

After hearing both sides, justice Chagla ordered a court commissioner to visit the residences of both parties to ascertain which would be “more conducive for the welfare of the minor child”.

In his report, the commissioner said “the residence of the petitioner (aunt) is in best condition where any child would like to stay” and therefore, he was of the opinion that “the residence of the petitioner is well equipped and is in very good condition for living of the child”.

Apart from the commissioner’s report and the fact that the child was emotionally attached to the aunt, the court noticed that while the biological father was aggressive, the mother was suffering from “deep psychological” issues.

Therefore, the court said, the welfare of the minor child would be best served by retaining his custody with the aunt and that the woman was required to be declared his lawful guardian.

The court, however, said “the Petitioner shall allow the Respondents access to the minor child at the residence of the Petitioner...”