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A Supreme Court bench of Justices MR Shah and Aniruddha Bose today granted the custody of a five years old Covid-19 orphan to the paternal grandparents choosing them over the maternal aunt.

The court reasoned that “In our society still the paternal grandparents would always take better care of their grandson. It is said that grandparents love the interest rather than the principle.”

The above was held in a case where the paternal grandparents filed a habeas corpus petition before the Gujarat High Court seeking custody of their five-year-old grandson. The child was in the custody of his maternal aunt since the demise of his parents.

Child's grandparents had alleged the maternal aunt did not allow the grandparents to enter the house of their son and daughter-in-law and to take the belongings of the child. They claimed that the child stayed with the maternal aunt when the parents were in the hospital.

When the case for child's custody reached the Gujarat High Court, it granted custody of the child to the maternal aunt. The High Court held that the maternal aunt was expected to provide paternal grandparents a right to meet the child on regular basis, preferably twice in a month, whenever convenient to both the families.

The High Court granted custody of the child to his maternal aunt on the basis of the fact that the aunt is a government employee aged 46 while the grandparents are retired, senior citizens. The High Court also directed the maternal aunt to ensure that the child is admitted to a school at Dahood, where she is staying.

However, the Top Court set aside the order of the Gujarat High Court and held,

“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.”

Court noted that in our society the paternal grandparents would always take better care of their grandson and the capacity of paternal grandparents to take care of their grandson should not be doubted.

Court added that the grandparents can take care of their grandson better emotionally as well.  Court also pointed out that since the grandparents stay in Ahmedabad, a metropolitan city, the child will get a better education than in Dahood.

Further, Court observed that the grandparents being retired persons would devote more time and take care of the minor better than the maternal aunt who is serving in the government department. Court noted that “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 judgment also clarifies that it should not be misunderstood that the maternal aunt may not take proper care of the minor son of her deceased sister. Court also granted visitation rights to the maternal aunt and asked the paternal grandparents to provide her with the right to meet the child regularly.

Court requested both sets of grandparents and the maternal aunt to act jointly and cordially and have cordial relations which shall be in the larger interest of the child.

Case title: Swaminathan Kunchu Acharya Vs State of Gujarat