Supreme Court of India
Supreme Court of India

SC give custody of 6-year-old, who lost both parents to COVID-19, to paternal grandparents

New Delhi, June 9, 2022

The Supreme Court on Thursday said that, emotionally, grandparents will always take care of their grandson, as it handed over custody of a 6-year-old boy, whose parents had died in the second wave of COVID-19, from his maternal aunt to his paternal grandparents.

A bench of Justices M. R. Shah and Aniruddha Bose said: "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."

It added that grandparents "love the interest, rather than the principal" and emotionally also the grandparents will always take better care of their grandson.

The child's father died on May 13, 2021 and within a month, the mother also died during the second wave of the COVID-19 pandemic. The paternal grandfather moved the high court claiming the maternal aunt was not allowing him to meet his grandchild.

"It is reported that they have also managed to get admission of the minor in a school in Ahmedabad. The minor will get better education in Ahmedabad, which is a metro city compared to the education in Dahod (where the aunt is based)," said the bench.

The top court's judgment came on a plea by the 71-year-old grandfather of the child from Ahmedabad. It set aside the Gujarat High Court's order to hand over the custody of the child to the maternal aunt, who is a Central government employee.

The bench said merely because the maternal aunt is having a bigger family, there cannot be any presumption that they will take better care of the grandson than the paternal grandparents.

"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," added the bench. It also pointed out that it was a very difficult choice made by the high court handing over the custody to the aunt.

"We are of the opinion that the 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," it said.

The bench noted that during the interim custody, there was nothing to suggest that they have not taken good care of the child, and also the minor has expressed his willingness to stay with the grandparents. The top court also granted regular visitation rights and video calling to the aunt, and also the child's stay with her during the vacations as per his wishes.

"We request to all concerned to forget the bitterness and forget the past and look in the future, taking into consideration the future of the minor who, unfortunately, has lost his parents at the age of five years only. With this hope and trust, we close the present proceedings," said the bench.

The bench added: "However, it is also made clear that the present order shall be subject to the final outcome of the proceedings under Section 7 of the Guardians and Wards Act, pending before the competent court."


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