SWAMINATHAN KUNCHU ACHARYA versus STATE OF GUJARAT & ORS. on 9 June 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 02.05.2022 passed by the High Court of Gujarat atGAhmedabad in Special Criminal Application No. 6708/2021, by which, inthe writ petition seeking writ of habeas corpus for production of corpus– Pranav Acharya aged 5 years, filed by the appellant herein – paternalgrandfather of the corpus, the High Court has handed over the custodyof the corpus to the contesting respondent No. 4 herein – maternal aunt H

of the corpus, the appellant – original writ petitioner – paternal grandfatherhas preferred the present appeal.

2. Appellant herein aged 71 years is the paternal grandfather ofcorpus. Respondent No. 4 is the maternal aunt to whom the High Courthas given the custody of corpus.

2.1 Parents of corpus were working and residing in theAhmedabad. The corpus and his parents were staying happily.Unfortunately, both the parents of the corpus died during the secondwave of Covid-19. Father of corpus – Rajesh Acharya expired on13.05.2021 and the mother of corpus, namely, Rakhi Acharya on12.06.2021. While the parents of the corpus were infected with Covid-19, the minor corpus was residing with respondent No. 4 herein – maternalaunt. The appellant – original writ petitioner before the High Court –paternal grandfather approached the High Court by way of the presentwrit petition – for writ of habeas corpus alleging that respondent No. 4 –maternal aunt is not allowing them to enter the house of his son anddaughter in law and to take belongings of corpus. It was also allegedthat the appellant is not even permitted to meet the corpus. Therefore,the appellant – paternal grandfather sought custody of the minor corpusaged 5 years. By the impugned judgment and order, the High Court hasgiven the custody of the minor corpus to respondent No. 4 – maternalaunt. At this stage, it is required to be noted that as such pursuant tointerim order dated 13.09.2021 passed by the High Court, the interimcustody of the minor corpus was given to the appellant, which remainedwith the appellant till the final disposal of the writ petition before theHigh Court. By the impugned judgment and order, the High Court hasdirected the appellant to give custody of the corpus on 31.05.2022. TheHigh Court has also further observed that it is expected that respondentNo. 4 to provide paternal grandparents a right to meet the corpus onregular basis, preferably twice in a month, whenever convenient to boththe families. The operative portion of the impugned judgment and orderpassed by the High Court is as under: - “7.2 In view of above facts and taking note of overallcircumstances, in our opinion the welfare and best interest ofCorpus is with Respondent No. 4 (maternal aunt) namelyHemangini @ Mintu Madanmohan Shuryanvanshi. Therefore, let A

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custody of Minor Corpus- Pranav Rajesh Acharya be given tomaternal aunt i.e. Respondent No. 4. The Petitioner is directed togive custody of Corpus on 31st May, 2022 between 11:00 a.m. to5:00 p.m. The Respondent No. 4 is directed to ensure the educationof Corpus in the school at Dahod from new academic year. Theprocedural formalities for the admission is expected to becompleted as early as possible.

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7.3 Further, in order to balance the equities and considering theage of the Petitioner and his wife, we expect Respondent No. 4to provide paternal grandparents a right to meet the corpus onCregular basis, preferably twice in a month, whenever convenientto both the families. It is desirable that Respondent No. 4 duringvacation and holidays may permit the Corpus to visit and staywith his grandparents, subject to the wishes of the Corpus. It isalso expected to have video calling between the Corpus and theDPetitioner on regular basis. Needless to say that Respondents areexpected to act as a bridge between the Corpus and his paternalgrandparents so that emotional bonding remains intact.

7.4 It is however made clear that this order shall not in any wayprejudice the right of Petitioner for any application to be filedbefore competent court of law.”

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2.2 Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court directing to give custody of thecorpus to respondent No. 4 – maternal aunt, the appellant – paternalgrandfather of the corpus has preferred the present appeal.

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3. Shri D.N. Ray, learned counsel has appeared on behalf of theappellant – paternal grandfather of the corpus and Shri Rauf Rahim,learned counsel has appeared on behalf of respondent No. 4 herein –main contesting party – maternal aunt of the corpus.

4. Shri Ray, learned counsel appearing on behalf of the appellantGhas submitted that the appellant is the paternal grandfather, who is seekingthe custody of his minor grandson, who has lost both his parents.

4.1It is submitted that the High Court has committed a grave/serious error in directing to handover the custody of corpusto respondent No. 4 who is the maternal aunt of corpus. It H

is submitted that as such no valid reasons are given by theHigh Court on not to give/continue the custody of corpuswith the paternal grandparents. It is submitted that thereasons given by the High Court while not giving custodyto the appellant/paternal grandparents and instead to givecustody to the maternal aunt are not germane.

4.2It is submitted that there are no findings given by the HighCourt that the appellant being a paternal grandfather wouldnot be in a position to take care of his grandson.

4.3It is submitted that merely because the appellant – paternalgrandfather is aged 71 years and his wife – paternalgrandmother is aged 63 years and therefore, to presumethat the paternal grandparents would not be in a position totake better care of the grandson cannot be accepted. It issubmitted that there cannot be such a presumption.

4.4It is submitted that similarly the other reasons on the custodyof the corpus is given to respondent No. 4 – maternal auntis that she is having a bigger family. It is submitted thatmerely because respondent No. 4 is having a bigger family,there cannot be any presumption that they will take bettercare of the grandson of the appellant than the appellant –paternal grandparents.

4.5It is submitted that even the corpus has also not statedanything against the appellant and his wife – paternalgrandparents to the effect that he is not being taken care ofwell.

4.6It is submitted that therefore in the facts and circumstancesof the case and the paternal grandparents would be in abetter position to take care of their grandson, the High Courthas committed a serious error in tilting the balance in handingover the custody of the corpus to respondent No. 4 –maternal aunt against the claim of paternal grandparents tohave the custody of their grandson.

5. Shri Rauf Rahim, learned counsel appearing on behalf ofrespondent No. 4 while opposing the present appeal has vehemently A

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Asubmitted that when by giving cogent reasons and looking to the welfareand larger interest of the child, when the High Court has directed tohandover the custody of the corpus to respondent No. 4 – maternalaunt, the same may not be interfered with by this Court in exercise ofpowers under Article 136 of the Constitution of India.

B5.1It is submitted that respondent No. 4 – maternal aunt is aspinster and in good health to look after, care and devoteattention towards the welfare and upbringing of the corpus.It is submitted that maternal aunt is aged about 46 years ofage and M.Com and a Central Government employee havingCdecent salary. It is submitted that so far as the appellant isconcerned, he is a retired government employee aged 71years. It is submitted that therefore, when the balance isstruck, in that case respondent No. 4 – maternal aunt wouldbe in a better position to look after and take care of theDcorpus than the appellant – paternal grandfather.

5.2It is submitted that as such the High Court has consideredall the surrounding factors viz. (i) the maternal aunt is aged46 years of age; (ii) she is an M. Com better qualified thanthe paternal grandfather; (iii) she is a central governmentEemployee having decent salary; (iv) the substantial positivedifference of staying in a joint family being better suited tocater the educational needs including interaction withteachers, need of co-curricular activities. It is submittedthat all the relevant factors for a wholesome developmentof corpus have been taken into consideration by the HighFCourt. It is submitted that as such respondent No. 4 –maternal aunt has also got the corpus admitted on09.07.2021 into St. Stephen’s School, Dahod, which is awell reputed school. The said school is near to her residentialaccommodation in Dahod and there is no difficulty in travel.G

5.3It is submitted that the appellant – paternal grandfather is aretired person and living on pension which is not much.

5.4It is submitted that as observed by this Court in the casesof Perry Kansagra Vs. Smriti Madan Kansagra; (2019)H20 SCC 753 and Ashish Ranjan Vs. Anupma Tandon and Anr.; (2010) 14 SCC 274, in case of custody of aminor child paramount consideration remains welfare andinterest of the child.

5.5Making the above submissions it is prayed to dismiss thepresent appeal.

6. We have heard learned counsel appearing on behalf of therespective parties at length.

7. At the outset, it is required to be noted that the appellant is thepaternal grandfather and he and his wife – paternal grandparents areseeking custody of their minor grandson, who has lost his parents in theCovid-19 pandemic. Respondent No. 4 is the maternal aunt to whom bythe impugned order, the High Court has directed to handover the custodyof the corpus. It is also required to be noted that the appellant is stayingin Ahmedabad and respondent No. 4 – maternal aunt is staying in Dahod,which is a tribal area/district.

7.1From the impugned judgment and order passed by the HighCourt and while handing over the custody of the minor torespondent No. 4 – maternal aunt what have been weighedwith the High Court is that the appellant – paternalgrandparents are old age – 71 and 63 years respectivelyagainst which respondent No. 4 is aged 46 years; thatrespondent No. 4 – maternal aunt is having a bigger family;that the appellant is a retired government servant –depending upon the pension against which respondent No.4 is a government employee and therefore she will be in abetter position to take care of the minor. Therefore, theHigh Court has opined that it will be in the larger interestand welfare of the child that the custody is handed over torespondent No. 4 – maternal aunt. However, at the sametime, it is required to be noted that the corpus has shownhis inclination to stay with the appellant – paternalgrandparents, so recorded in one of the orders dated23.12.2021. It is to be noted that the custody of the minorremained with the grandfather pursuant to the interim orderpassed by the High Court. Nothing is observed by the HighCourt that during the interim custody period, the appellant A

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– paternal grandparents did not take proper care of theminor. There was no grievance made by the minor. On thecontrary and as observed hereinabove, the minor has shownhis willingness to stay with the appellant. Nothing is observedby the High Court that during the interim custody period,the appellant – paternal grandparents acted detrimental tothe interest of the minor and/or they did not take propercare.

7.2So far as the reasons assigned by the High Court whilehanding over the custody of the minor to the maternal auntreproduced hereinabove, we are of the opinion that thosereasons/grounds may be relevant but not germane. Therecannot be any presumption that the maternal aunt beingunmarried having an independent income; younger than thepaternal grandparents and having a bigger family would takebetter care than the paternal grandparents. In our societystill the paternal grandparents would always take better careof their grandson. One should not doubt the capacity and/or ability of the paternal grandparents to take care of theirgrandson. It is said that the grandparents love the interestrather than the principle. Emotionally also the grandparentswill always take care better care of their grandson. GrandParents are more attached emotionally with grandchildren.It is reported that they have also managed to get admissionof the minor in a school in Ahmedabad. The minor will getbetter education in Ahmedabad, which is a Metro Citycompared to the education in Dahod. Being a retired person,the paternal grandparents would devote more time and takecare of minor better than respondent No. 4 who is servingin the government department. Income and/or the age and/or the bigger family cannot be the sole criteria to tilt thebalance and not to give the custody of the grandson to thepaternal grandparents. At the cost of repetition, it is observedthat neither the High Court has observed anything againstthe appellant or the paternal grandparents that they havenot taken proper care of the minor grandson while interimcustody of the corpus was them and/or they acted detrimental to the interest of the minor. We appreciate theefforts made by the High Court and it was very difficultchoice by the High Court. However, on the facts andcircumstances of the case narrated above and for thereasons stated above, we are of the opinion that the HighCourt has committed an error in not handing over and/orcontinuing the custody of the corpus – grandson to theappellant – paternal grandparents and to give custody ofthe corpus to respondent No. 4 – maternal aunt of the corpus.We are of the opinion that if the balance is to be struckbetween the paternal grandparents and the maternal aunt,for the reasons stated above, the balance would certainlytilt in favour of the paternal grandparents. However, wemay not be misunderstood that the maternal aunt may nottake proper care of the minor son of her deceased sister.

8. In view of the above and for the reasons stated above, theimpugned judgment and order passed by the High Court handing overthe custody of the minor corpus to respondent No. 4 – maternal auntrather than handing over the custody of the minor corpus to the appellant– paternal grandfather is unsustainable and the same deserves to bequashed and set aside and is accordingly, quashed and set aside. However,it is also made clear that the present order shall subject to the finaloutcome of the proceedings under Section 7 of the Guardians and WardsAct, pending before the competent court.

We direct that the custody of minor corpus – Pranav Acharya becontinued with the appellant – paternal grandparents, who are directedto take care of minor – Pranav Acharya. The appellant is also directedto ensure the better education of the corpus in a school at Ahmedabad.However, respondent No. 4 shall have visitation right and we expect theappellant to provide a right to meet the corpus on regular basis preferablyonce in a month, subject to the convenience of the child. It is also furtherobserved that during the vacation and/or holidays the appellant may permitthe corpus to visit and stay with the maternal aunt – respondent No. 4,of course subject to wishes and convenience of the corpus and it maynot adversely affect the interest of the corpus including his educationand even the extra curriculum activities. It is also expected to havevideo calling between the corpus and maternal aunt on regular basis.

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AWe request both, paternal grandparents and maternal aunt & her family(on maternal side) to act jointly and cordially and have cordial relationswhich shall be in the larger interest of the minor - Pranav Acharya. Werequest to all the concerned to forget bitterness and forget the past andlook in the future taking into consideration the future of the minor - BPranav Acharya, who unfortunately, has lost his parents at the age offive years only. With this hope and trust, we close the present proceedings.Present Appeal is accordingly Allowed. In the facts and circumstancesof the case there shall be no order as to costs.

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Bibhuti Bhushan Bose

Appeal allowed.

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