SC fingers Covid orphan’s custody to grandparents as a substitute of aunt | Newest Information India
New Delhi: Never doubt the capacity or ability of grandparents to take care of their grandchildren, the Supreme Court said on Thursday as it granted the custody of a five-year-old child in Gujarat who lost both his parents to Covid-19 last year to his grandparents instead of his maternal aunt.
The Gujarat high court on May 2 had handed over the custody of the minor to his 46-year-old maternal aunt, noting that she was unmarried, had a central government job and was staying in a joint family in Dahod while the grandparents stayed on their own and survived on pension in Ahmedabad.
Dismissing the high court order as “unsustainable”, a bench of justices MR Shah and Aniruddha Bose said: “Income or age or a 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 bench clarified that the order was not to suggest that the maternal aunt was not capable of looking after the best interests of the child.
“In our society, the paternal grandparents will always take better care of their grandson. One should not doubt the capacity or ability of the paternal grandparents to take care of their grandson,” it said.
“Grandparents are more emotionally attached with their grandchildren… It is said that grandparents love the interest rather than the principal,” it added.
In his plea before the top court against the high court order, Swaminathan Kunchu Acharya, the child’s 71-year-old grandfather and a retired government employee, said he and his 63-year-old wife had managed to get admission for the minor boy in a good school in Ahmedabad.
Hemangini, the boy’s maternal aunt, informed the bench that she had secured him admission in a top Dahod school close to her house and that it would be better to raise the child in a joint family.
“The minor will get a better education in Ahmedabad (in comparison to Dahod) which is a metro city,” the bench said. The grandparents, who are retired, will be able to devote more time to the minor, it added.
The court, however, said the order was a temporary arrangement as the matter pertaining to the child’s custody was pending before the Guardians and Wards court. Under Section 7 of the Guardian and Wards Act of 1890, the trial court has the power to appoint a guardian for the welfare of a minor and to protect him and his property.
In the meantime, the court requested “both the paternal grandparents and maternal aunt and her family to act jointly and cordially and have cordial relations which shall be in the larger interest of the minor.”
The court allowed the maternal aunt to have visitation rights of at least once a month and frequent video calling and permitted the child to stay with her during vacation or holidays.
This will, however, be subjected to the wishes and convenience of the child and should not adversely impact his education and extra-curricular activities, the bench said.
As the bench went through the high court judgment in detail, it said it had found no observation to suggest anything against the grandfather while taking care of his minor grandson.
At the same time, the top court complimented the high court bench for deciding on a difficult case.
“We are not ignorant of the fact that for the petitioner and his wife, having seen their children dying in front of them, corpus (child) is their ray of life and hope. However, welfare of the corpus being the paramount consideration as of now, sentiments expressed by both the sides alone may not act as guiding factor,” the high court bench of justices Sonia Gokani and Mauna Bhatt had said in their order.
While reserving his orders on the matter till Tuesday, the top court bench had remarked that the age of 71 years was nothing as grandparents feel more energized while taking care of their grandchildren.
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