SWAMINATHAN KUNCHU ACHARYA versus STATE OF GUJARAT & ORS.
[2022] 6 S.C.R. 727, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SWAMINATHAN KUNCHU ACHARYA
v.
STATE OF GUJARAT & ORS.
(Criminal Appeal No. 898 of 2022)
JUNE 09, 2022
[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Custody – Of minor child – 5 year old child lost his parents in
the Covid-19 pandemic – Appellant is paternal grandfather of the
child, and he and his wife– paternal grandparents sought custody
of the child – Writ petition seeking writ of habeas corpus filed by
appellant – Contesting Respondent No.4 is maternal aunt of the
child – High Court handed over custody to respondent No.4 – Held:
On facts and circumstances, High Court erred in not handing over
and/or continuing the custody of the corpus–grandson to appellant
/ 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 – 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 – Appellant/paternal grandparents
even managed to get admission of the minor in a school in
Ahmedabad (where appellant was staying) – The minor will get better
education in Ahmedabad, which is a Metro City compared to
education in Dahod where respondent no.4 was staying – Further,
being a retired person, the appellant / paternal grandparents would
devote more time and take care of minor better than
respondent
No.4 who is serving in the government department – If balance is to
be struck between the paternal grandparents and the maternal aunt,
the balance would certainly tilt in favour of paternal grandparents
– Impugned judgment of High Court quashed and set aside –
However, the present order shall be subject to final outcome of the
proceedings u/s.7 of the Guardians and Wards Act, pending before
the competent court – Custody of minor corpus to continue with
appellant /paternal grandparents, who are directed to take care of
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SUPREME COURT REPORTS
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the minor – However, respondent No.4 shall have visitation rights –
Further, during vacation and/or holidays the appellant may permit
the corpus to visit and stay with respondent No. 4, subject to wishes
and convenience of the corpus and without adversely affecting the
interest of the corpus including his education and even extra
curriculum activities – Paternal grandparents as well as maternal
aunt & her family (on maternal side) to act jointly and cordially
and have cordial relations in the larger interest of the minor – Writ
petition – Writ of habeas corpus.
Perry Kansagra v. Smriti Madan Kansagra, (2019) 20
SCC 753 and Ashish Ranjan v. Anupma Tandon and
Anr. (2010) 14 SCC 274 – referred to.
Case Law Reference
(2019) 20 SCC 753
referred to
Para 5.4
(2010) 14 SCC 274
referred to
Para 5.4
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.898 of 2022.
From the Judgment and Order dated 02.05.2022 of the High Court
of Gujarat at Ahmedabad in Special Criminal Application No.6708 of
2021.
D. N. Ray, Dillip Kumar Nayak, Ms. Disha Ray, Mrs. Sumita
Ray, Advs. for the Appellant.
Rauf Rahim, Ali Asghar Rahim, Advs. for the Respondents.
The Order of the Court was passed by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 02.05.2022 passed by the High Court of Gujarat at
Ahmedabad in Special Criminal Application No. 6708/2021, by which, in
the writ petition seeking writ of habeas
corpus for production of corpus
– Pranav Acharya aged 5 years, filed by the appellant herein – paternal
grandfather of the corpus, the High Court has handed over the custody
of the corpus to the contesting respondent No. 4 herein – maternal aunt
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of the corpus, the appellant – original writ petitioner – paternal grandfather
has preferred the present appeal.
2. Appellant herein aged 71 years is the paternal grandfather of
corpus. Respondent No. 4 is the maternal aunt to whom the High Court
has given the custody of corpus.
2.1 Parents of corpus were working and residing in the
Ahmedabad. The corpus and his parents were staying happily.
Unfortunately, both the parents of the corpus died during the second
wave of Covid-19. Father of corpus – Rajesh Acharya expired on
13.05.2021 and the mother of corpus, namely, Rakhi Acharya on
12.06.2021. While the parents of the corpus were infected with Covid-
19, the minor corpus was residing with respondent No. 4 herein – maternal
aunt. The appellant – original writ petitioner before the High Court –
paternal grandfather approached the High Court by way of the present
writ petition – for writ of habeas corpus alleging that respondent No. 4 –
maternal aunt is not allowing them to enter the house of his son and
daughter in law and to take belongings of corpus. It was also alleged
that the appellant is not even permitted to meet the corpus. Therefore,
the appellant – paternal grandfather sought custody of the minor corpus
aged 5 years. By the impugned judgment and order, the High Court has
given the custody of the minor corpus to respondent No. 4 – maternal
aunt. At this stage, it is required to be noted that as such pursuant to
interim order dated 13.09.2021 passed
by the High Court, the interim
custody of the minor corpus was given to the appellant, which remained
with the appellant till the final disposal of the writ petition before the
High Court. By the impugned judgment and order, the High Court has
directed the appellant to give custody of the corpus on 31.05.2022. The
High Court has also further observed that it is expected that respondent
No. 4 to provide paternal grandparents a right to meet the corpus on
regular basis, preferably twice in a month, whenever convenient to both
the families. The operative portion of the impugned judgment and order
passed by the High Court is as under: -
“7.2 In view of above facts and taking note of overall
circumstances, in our opinion the welfare and best interest of
Corpus is with Respondent No. 4 (maternal aunt) namely
Hemangini @ Mintu Madanmohan Shuryanvanshi. Therefore, let
SWAMINATHAN KUNCHU ACHARYA v. STATE OF GUJARAT
& ORS. [M. R. SHAH, J.]
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custody of Minor Corpus- Pranav Rajesh Acharya be given to
maternal aunt i.e. Respondent No. 4. The Petitioner is directed to
give custody of Corpus on 31st May, 2022 between 11:00 a.m. to
5:00 p.m. The Respondent No. 4 is directed to ensure the education
of Corpus in the school at Dahod from new academic year. The
procedural formalities for the admission is expected to be
completed as early as possible.
7.3 Further, in order to balance the equities and considering the
age of the Petitioner and his wife, we expect Respondent No. 4
to provide paternal grandparents a right to meet the corpus on
regular basis, preferably twice in a month, whenever convenient
to both the families. It is desirable that Respondent No. 4 during
vacation and holidays may permit the Corpus to visit and stay
with his grandparents, subject to the wishes of the Corpus. It is
also expected to have video calling between the Corpus and the
Petitioner on regular basis. Needless to say that Respondents are
expected to act as a bridge between the Corpus and his paternal
grandparents so that emotional bonding remains intact.
7.4 It is however made clear that this order shall not in any way
prejudice the right of Petitioner for any application to be filed
before competent court of law.”
2.2 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court directing to give custody of the
corpus to respondent No. 4 –
maternal aunt, the appellant – paternal
grandfather of the corpus has preferred the present appeal.
3. Shri D.N. Ray, learned counsel has appeared on behalf of the
appellant – 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 appellant
has submitted that the appellant is the paternal grandfather, who is seeking
the custody of his minor grandson, who has lost both his parents.
4.1
It is submitted that the High Court has committed a grave/
serious error in directing to handover the custody of corpus
to respondent No. 4 who is the maternal aunt of corpus. It
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is submitted that as such no valid reasons are given by the
High Court on not to give/continue the custody of corpus
with the paternal grandparents. It is submitted that the
reasons given by the High Court while not giving custody
to the appellant/paternal grandparents and instead to give
custody to the maternal aunt are not germane.
4.2
It is submitted that there are no findings given by the High
Court that the appellant being a paternal grandfather would
not be in a position to take care of his grandson.
4.3
It is submitted that merely because the appellant – paternal
grandfather is aged 71 years and his wife – paternal
grandmother is aged 63 years and therefore, to presume
that the paternal grandparents would not be in a position to
take better care of the grandson cannot be accepted. It is
submitted that there cannot be such a presumption.
4.4
It is submitted that similarly the other reasons on the custody
of the corpus is given to respondent No. 4 – maternal aunt
is that she is having a bigger family. It is submitted that
merely because respondent No. 4 is having a bigger family,
there cannot be any presumption that they will take better
care of the grandson of the appellant than the appellant –
paternal grandparents.
4.5
It is submitted that even the corpus has also not stated
anything against the appellant and his wife – paternal
grandparents to the effect that he is not being taken care of
well.
4.6
It is submitted that therefore in the facts and
circumstances
of the case and the paternal grandparents would be in a
better position to take care of their grandson, the High Court
has committed a serious error in tilting the balance in handing
over the custody of the corpus to respondent No. 4 –
maternal aunt against the claim of paternal grandparents to
have the custody of their grandson.
5. Shri Rauf Rahim, learned counsel appearing on behalf of
respondent No. 4 while opposing the present appeal has vehemently
SWAMINATHAN KUNCHU ACHARYA v. STATE OF GUJARAT
& ORS. [M. R. SHAH, J.]
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submitted that when by giving cogent reasons and looking to the welfare
and larger interest of the child, when the High Court has directed to
handover the custody of the corpus to respondent No. 4 – maternal
aunt, the same may not be interfered with by this Court in exercise of
powers under Article 136 of the Constitution of India.
5.1
It is submitted that respondent No. 4 – maternal aunt is a
spinster and in good health to look after, care and devote
attention towards the welfare and upbringing of the corpus.
It is submitted that maternal aunt is aged about 46 years of
age and M.Com and a Central Government employee having
decent salary. It is submitted that so far as the appellant is
concerned, he is a retired government employee aged 71
years. It is submitted that therefore, when the balance is
struck, in that case respondent No. 4 – maternal aunt would
be in a better position to look after and take care of the
corpus than the appellant – paternal grandfather.
5.2
It is submitted that as such the High Court has considered
all the surrounding factors viz. (i) the maternal aunt is aged
46 years of age; (ii) she is an M. Com better qualified than
the paternal grandfather; (iii) she is a central government
employee having decent salary; (iv) the substantial positive
difference of staying in a joint family being better suited to
cater the educational needs including interaction with
teachers, need of co-curricular
activities. It is submitted
that all the relevant factors for a wholesome development
of corpus have been taken into consideration by the High
Court. It is submitted that as such respondent No. 4 –
maternal aunt has also got the corpus admitted on
09.07.2021 into St. Stephen’s School, Dahod, which is a
well reputed school. The said school is near to her residential
accommodation in Dahod and there is no difficulty in travel.
5.3
It is submitted that the appellant – paternal grandfather is a
retired person and living on pension which is not much.
5.4
It is submitted that as observed by this Court in the cases
of Perry Kansagra Vs. Smriti Madan Kansagra; (2019)
20 SCC 753 and Ashish Ranjan Vs. Anupma Tandon
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and Anr.; (2010) 14 SCC 274, in case of custody of a
minor child paramount consideration remains welfare and
interest of the child.
5.5
Making the above submissions it is prayed to dismiss the
present appeal.
6. We have heard learned counsel appearing on behalf of the
respective parties at length.
7. At the outset, it is required to be noted that the appellant is the
paternal grandfather and he and his wife – paternal grandparents are
seeking custody of their minor grandson, who has lost his parents in the
Covid-19 pandemic. Respondent No. 4 is the maternal aunt to whom by
the impugned order, the High Court has directed to handover the custody
of the corpus. It is also required to be noted that the appellant is staying
in Ahmedabad and respondent No. 4 – maternal aunt is staying in Dahod,
which is a tribal area/district.
7.1
From the impugned judgment and order passed by the High
Court and while handing over the custody of the minor to
respondent No. 4 – maternal aunt what have been weighed
with the High Court is that the appellant – paternal
grandparents are old age – 71 and 63 years respectively
against which respondent No. 4 is aged 46 years; that
respondent 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 a
better position to take care of the minor. Therefore, the
High Court has opined
that it will be in the larger interest
and welfare of the child that the custody is handed over to
respondent No. 4 – maternal aunt. However, at the same
time, it is required to be noted that the corpus has shown
his inclination to stay with the appellant – paternal
grandparents, so recorded in one of the orders dated
23.12.2021. It is to be noted that the custody of the minor
remained with the grandfather pursuant to the interim order
passed by the High Court.  Nothing is observed by the High
Court that during the interim custody period, the appellant
SWAMINATHAN KUNCHU ACHARYA v. STATE OF GUJARAT
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– paternal grandparents did not take proper care of the
minor. There was no grievance made by the minor. On the
contrary and as observed hereinabove, the minor has shown
his willingness to stay with the appellant. Nothing is observed
by the High Court that during the interim custody period,
the appellant – paternal grandparents acted detrimental to
the interest of the minor and/or they did not take proper
care.
7.2
So far as the reasons assigned by the High Court while
handing over the custody of the minor to the maternal aunt
reproduced hereinabove, we are of the opinion that those
reasons/grounds may be relevant but not germane. 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. It is said that the grandparents love the interest
rather than the principle. Emotionally also the grandparents
will always take care better care of their grandson. Grand
Parents are more attached emotionally with grandchildren.
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. 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. At the cost of repetition, it is 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
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detrimental to the interest of the minor. We appreciate the
efforts made by the High Court and it was very difficult
choice by the High Court. However, on the facts and
circumstances of the case narrated above and for the
reasons stated above, 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.
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. However, we
may not be misunderstood that the maternal aunt may not
take proper care of the minor son of her deceased sister.
8. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court handing over
the custody of the minor corpus to respondent No. 4 – maternal aunt
rather than handing over the custody of the minor corpus to the appellant
– paternal grandfather is unsustainable and the same deserves to be
quashed and set aside and is accordingly, quashed and set aside. However,
it is also made clear that the present order shall subject to the final
outcome of the proceedings under Section 7 of the Guardians and Wards
Act, pending before the competent court.
We direct that the custody of
minor corpus – Pranav Acharya be
continued with the appellant – paternal grandparents, who are directed
to take care of minor – Pranav Acharya. The appellant is also directed
to ensure the better education of the corpus in a school at Ahmedabad.
However, respondent No. 4 shall have visitation right and we expect the
appellant to provide a right to meet the corpus on regular basis preferably
once in a month, subject to the convenience of the child. It is also further
observed that during the vacation and/or holidays the appellant may permit
the corpus to visit and stay with the maternal aunt – respondent No. 4,
of course subject to wishes and convenience of the corpus and it may
not adversely affect the interest of the corpus including his education
and even the extra curriculum activities. It is also expected to have
video calling between the corpus and maternal aunt on regular basis.
SWAMINATHAN KUNCHU ACHARYA v. STATE OF GUJARAT
& ORS. [M. R. SHAH, J.]
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We request both, paternal grandparents and maternal aunt & her family
(on maternal side) to act jointly and cordially and have cordial relations
which shall be in the larger interest of the minor - Pranav Acharya. We
request to all the concerned to forget bitterness and forget the past and
look in the future taking into consideration the future of the minor -
Pranav Acharya, who unfortunately, has lost his parents at the age of
five years only. With this hope and trust, we close the present proceedings.
Present Appeal is accordingly Allowed. In the facts and circumstances
of the case there shall be no order as to costs.
Bibhuti Bhushan Bose
Appeal allowed.