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‘Don’t doubt grandparents’ capacity or ability’: SC observes in custody ruling
The Supreme Court also asked the paternal and maternal family of the five-year-old orphan to forget the bitterness on account of the inter-caste marriage by the child’s parents.
The Supreme Court on Thursday gave the custody of a five-year-old child who lost his parents to Covid-19 to his 71-year-old grandfather rather than the child’s maternal aunt, observing that there was no need to doubt the capacity or ability of the paternal grandparents to take care of their grandson.
The Gujarat high court on May 2 leaned in favour of the child’s 46-year-old maternal aunt, a working woman. The high court noted that the maternal aunt lived in Dahod in a joint family setting that was conducive to the child’s upbringing compared to the lone presence of paternal grandparents to look after the child.
The Supreme Court set aside the high court’s order, saying it was “unsustainable”.
“Income or age or bigger family cannot be the sole criteria to tilt the balance and not to give the custody of the grandson to the paternal grandparents,” the bench of justices MR Shah and Aniruddha Bose said.
The top court clarified that the order was not to suggest that the maternal aunt was not capable of looking after the best interests of the child.
“In our society still the paternal grandparents would always take better care of their grandson. One should not doubt the capacity or ability of the paternal grandparents to take care of their grandson,” the court ruled.
The judges continued to explain. “Grandparents are more attached emotionally with grandchildren….It is said that grandparents love the interest rather than the principal.”
The grandfather, a retired government employee, informed the court that they got admission for the minor in a good school in Ahmedabad. The bench said the child will get a better education in Ahmedabad which is a metro city as compared to Dahod and added that the grandparents will be able to spend time with the child.
The court underlined that its ruling was a temporary arrangement as the main issue with regard to custody of the child was pending before the Guardians and Wards court.
In the interim, the bench also appealed to the child’s paternal grandparents and maternal aunt “to act jointly and cordially and have cordial relations which shall be in the larger interest of the minor.” The top court noted that the two families have had serious differences as the petitioner was opposed to his son marrying a girl from another caste.
The judges asked all concerned to forget bitterness and the past and consider the future of the minor who became an orphan at a young age.
The court also allowed the maternal aunt to have visitation rights at least once a month, frequent video calling and permitted the child to stay with her during vacation or holidays. This will, however, be subject to the wishes and convenience of the child and should not adversely impact his education and extra-curricular activities, the bench added.
Even as the top court cancelled the high court ruling, the two-judge bench complimented the high court judge for making a difficult choice. In its order, the high court noted: “We are not ignorant of the fact that for the petitioner and his wife, having seen their children dying in front of them, corpus (child) is their ray of life and hope. However, welfare of the corpus being the paramount consideration as of now, sentiments expressed by both the sides alone may not act as guiding factor.”
