Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 898 OF 2022
Swaminathan Kunchu Acharya …Appellant(s)
Versus
State of Gujarat & Ors. …Respondent(s)
O R D E R
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
Signature Not Verified
handed over the custody of the corpus to the contesting
Digitally signed by
SWETA BALODI
Date: 2022.06.09
15:15:45 IST
Reason:
respondent No. 4 herein – maternal aunt of the corpus, the
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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
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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
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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.
Shri D.N. Ray, learned counsel has appeared on behalf of
3.
the appellant – paternal grandfather of the corpus and Shri
Rauf Rahim, learned counsel has appeared on behalf of
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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 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 –
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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
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corpus to respondent No. 4 – maternal aunt against the
claim of paternal grandparents to have the custody of their
grandson.
Shri Rauf Rahim, learned counsel appearing on behalf of
5.
respondent No. 4 while opposing the present appeal has
vehemently 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
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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 cocurricular
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.
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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
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.
At the outset, it is required to be noted that the appellant is
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the paternal grandfather and he and his wife – paternal
grandparents are seeking custody of their minor grandson,
who has lost his parents in the Covid19 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.
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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
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interim custody period, the appellant – 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
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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 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.
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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
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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. We request both, paternal
grandparents and maternal aunt & her family (on maternal
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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.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
June 09, 2022 [ANIRUDDHA BOSE]
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