HC prefers caregiver over grandparents for custody of minor

The court emphasised on the importance of the child’s emotional needs, which overrides the biological ties

MUMBAI: The Bombay high court on Monday chose a caregiver over biological grandparents for the custody of a minor boy, an orphan, because of the “great bond” shared between the child and the caregiver. The court emphasised on the importance of the child’s emotional needs, which overrides the biological ties.

Mumbai - Bombay High Court. Photo by Girish Srivastava/HT 08-01-02

The eight-year-old lost his mother, Iona, to Covid-19 in February 2021, and his father, Johnny, to a road accident in July 2023, after which the minor has been staying with the caregiver. After his parents’ death, the child’s grandparents filed a guardianship petition in 2024, seeking his permanent custody. Having maintained a close relationship with the minor, the grandparents contended that they were financially stable to raise him.

On the other hand, Iona’s cousin, Steffi Genovevo Fernandes, who was engaged to Johnny before his death, was taking care of the minor after his mother’s death. She claimed that after Johnny’s death, his father had executed an affidavit in July 2023, giving his unconditional consent to Fernandes to be the minor’s guardian and to keep his custody.

Meanwhile, the boy’s grandparents alleged that Fernandes was not allowing them to meet him. They lodged a complaint at the Kashimira police station in August 2023, demanding the boy’s custody as his natural guardians. They also contacted the child helpline that month and were asked to lodge a formal complaint with the Child Welfare Committee (CWC).

The CWC, in September 2023, instructed the police to take the child to Janani Ashish Charitable Trust, a children’s home in Dombivli. Subsequently, Fernandes filed a criminal writ petition the same day, challenging the jurisdiction and power of CWC and police authorities to take action. She stated that the child was forced into a police vehicle and was later kept in the children’s home. “The illegal confinement in children’s home has affected the child’s mental and physical health severely”, she added.

The Bombay high court on November 11, 2023, had issued an order in favour of Fernandes, stating that despite her not being the biological mother, she has been taking care of him since 2021. Accordingly, custody was restored to her. However, in May 2024, the grandparents filed a fresh guardianship petition in the high court.

Representing the grandparents, advocate Susan Abraham, held Fernandes responsible for disturbing the child’s emotional and psychological well-being by leaving him at the children’s home in Dombivli. She further stated that Fernandes’s behavioural control over the child, to the exclusion of his entire family, is not only unhealthy but also can cause permanent damage to the tender and impressionable psyche of the child.

Counsel Sorankar, representing Fernandes, underscored that the child was left to suffer in the children’s home due to the complaint raised by his grandparents. “If they were so concerned about the welfare of the child, they would have not acted in such a manner which would cause immense injury to the child’s mind and body,” he stated, highlighting the close bond that Fernandes shares with the child.

Giving paramount consideration to the child’s welfare, the single-judge bench of justice RI Chagla stated that a balance has to be struck between attachment and sentiments of both the parties towards the minor. Observing that the minor is not old enough to form an intelligent preference, the court relied on the counsellor’s report, which pointed out the extremely vulnerable and indecisive behaviour of the child and his biological family and an unhealthy attachment to Fernandes for not socializing with any other person except her.

Noticing the great bond between the child and the caregiver, the court observed that the child would be best suited with Fernandes, who would now be the child’s guardian. It also appointed Fernandes as the competent person to pursue any proceedings as may be required or advised with respect to insurance scheme, PPF, Gratuity and any other claims of whatsoever nature of Johnny.