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SUPREME COURT OF INDIA
M.R. SHAH, ANIRUDDHA BOSE, JJ.
Swaminathan Kunchu Acharya – Appellant(s)
Versus
State of Gujarat & Ors. – Respondent(s)
CRIMINAL APPEAL NO. 898 OF 2022
Decided On : 09-06-2022
Constitution of India – Article 226 – Guardians and Wards Act, 1890 – Section 7 – Habeas Corpus Petition – Custody of child – Paternal grandparents are seeking custody of their minor grandson, who has lost his parents in Covid-19 Pandemic – There cannot be any presumption that maternal aunt being unmarried having an independent income; younger than paternal grandparents and having a bigger family would take better care than paternal grandparents – In our society still paternal grandparents would always take better care of their grandson – One should not doubt capacity and/or ability of paternal grandparents to take care of their grandson – Nothing is observed by High Court that during interim custody period, appellant-paternal grandparents acted detrimental to interest of minor and/or they did not take proper care – Reasons assigned by High Court while handing over custody of minor to maternal aunt, may be relevant but not germane – Emotionally also grandparents will always take care better care of their grandson – Grand Parents are more attached emotionally with grandchildren – They have also managed to get admission of minor in a school in Ahmedabad – Minor will get better education in Ahmedabad, which is a Metro City compared to education in Dahod – If balance is to be struck between paternal grandparents and maternal aunt, balance would certainly tilt in favour of paternal grandparents – Balance would certainly tilt in favour of paternal grandparents – However, present order shall subject to final outcome of proceedings under Section 7 Guardians and Wards Act, pending before competent court – Visitation rights granted to maternal aunt. (Paras 7.1, 7.2 and 8)
Facts of the case:
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 corpus, High Court has handed over the custody of the corpus to the contesting respondent No. 4 herein – maternal aunt of corpus, appellant – original writ petitioner – paternal grandfather has preferred the present appeal.
Findings of Court:
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.
Result : Appeal allowed.
ORDER
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 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 Covid19. 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 Covid19, 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 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 thi
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