June 11, 2022 In Uncategorized


A two Judge Bench of the Hon’ble Supreme Court of India comprising of Justice M.R. Shah and Justice Aniruddha Bose passed a Judgment dated 09-06-2022 in the case of Swaminathan Kunchu Acharya v. State of Gujarat & Ors. (Criminal Appeal No. 898 of 2022) and reiterated that in case of custody of a minor child, the paramount consideration remains welfare and interest of the child.

In the present case, parents of one Pranav Acharya aged 5 years (hereinafter referred to as Corpus), used to reside and work in Ahmedabad. Unfortunately, both the parents of the Corpus died during the second wave of Covid­19. While the parents were infected with Covid-19, the minor Corpus was residing with his maternal aunt i.e. the Respondent No.4 herein (aged 46 years) who used to stay in Dahod, which is a tribal area/district in Gujarat.

The original Writ Petitioner before the High Court of Gujarat at Ahmedabad (High Court) and the Appellant herein before the Supreme Court, who is the Paternal Grandfather of the minor Corpus, aged 71 years, residing in Ahmedabad had approached the High Court by way of the Writ Petition – seeking writ of habeas corpus alleging that Respondent No. 4 was not allowing them to enter the house of his son and daughter in law and also not allowing to take belongings of the minor Corpus. It was also alleged that the Appellant was not even permitted to meet the Corpus. Therefore, the Appellant sought the custody of the minor Corpus before the High Court. The Interim Custody   of   the   minor   Corpus   was given   to   the Appellant vide an Interim Order dated 13-09-2021, and the said custody remained with the Appellant till the final disposal of the Writ Petition before the High Court. The minor Corpus also showed an inclination towards staying with his grandparents as recorded in the High Court Order dated 23-12-2021.

However, the High Court in Special Criminal Application No. 6708/2021, directed the Appellant to give custody of the Corpus on 31-05-2022 to Respondent No. 4 vide Impugned Judgment and Order dated 02-05-2022. The High Court based its judgment on the view that the Paternal Grandparents are in their old age i.e. 71 years and 63 years respectively against which Respondent No. 4 is aged 46 years and has a bigger family. Also, the Appellant was a retired Government servant depending upon the pension against which Respondent No. 4 was a Government employee and therefore she will be in a better position to take care of the minor Corpus. The High Court has also further observed that Respondent No. 4 will have to provide paternal grandparents a right to meet the Corpus on regular basis, preferably twice in a month, whenever convenient to both the families.

Aggrieved and dissatisfied with the Impugned Judgment and Order dated 02-05-2022 of the High Court, the Appellant preferred an Appeal before the Apex Court. After taking into consideration the facts and circumstances of the case, the Bench noted that the grounds considered by the High Court in granting the custody of the minor Corpus to Respondent No. 4 may be relevant but not germane. The Supreme Court in this regard observed as follows:

“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.  Grand Parents are more attached emotionally with grandchildren. Being a retired person, the paternal grandparents would devote more time and take care of minor better than respondent No. 4 who is serving in the government department. 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.”

The Apex Court noted that the Grandparents also managed to get admission of the minor in a   school in Ahmedabad and opined that the minor will get better education in Ahmedabad, which is a metro city compared to the education in Dahod.

The Supreme Court also observed that “neither   the   High   Court   has   observed anything   against   the   appellant   or   the   paternal grandparents that they have not taken proper care of the minor grandson while interim custody of the corpus was them and/or they acted detrimental to the interest of the minor…..High Court has committed an error in not handing over and/or continuing the custody of the corpus – grandson to   the   appellant – paternal grandparents and to give custody of  the  corpus to respondent No. 4 – maternal aunt of the corpus. We are of the opinion that 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.”

Therefore, based on these observations and findings, the Apex Court held that the Impugned Judgment and Order dated 02-05-2022 passed by the High Court whereby the custody of the minor Corpus was granted to Respondent No. 4 rather than handing it to the Appellant-Grandfather was unsustainable. The Bench quashed the said Order dated 02-05-2022 and directed that the custody of the minor Corpus shall continue with the Appellant-Paternal Grandfather, who was directed to take care of the minor child. The Respondent No. 4 was given the visitation rights to meet the Corpus on regular basis preferably once in a month, subject to the convenience of the child, video calls on a regular basis and that during the vacation and/or holiday, the Appellant may permit the minor Corpus to visit and stay with the Respondent No.4 – the maternal aunt, subject to the wishes and convenience of the Corpus   and that it does not adversely affect the interest of the Corpus including his education and extra curriculum activities. With these directions, the Appeal was allowed.

Suchitra Upadhyay


The Indian Lawyer & Allied Services


Edited by

Sushila Ram Varma

Chief Consultant

The Indian Lawyer & Allied Services

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