SC gives custody of boy orphaned by COVID-19 to paternal grandparents

Observing that paternal grandparents would always take “better care” of grandchildren, the Supreme Court Thursday granted the custody of a six-year-old boy, orphaned in the deadly second wave of Covid last year, to his paternal grandparents instead of the maternal aunt.

The boy lost his father and mother on May 13 and June 12, 2021, respectively to COVID-19, and later his custody was granted to his maternal aunt by the Gujarat High Court on various grounds including her age, unmarried status, government job, and the joint family.

A bench of justices M R Shah and Aniruddha Bose set aside the Gujarat High Court verdict and allowed the appeal of the 71-year-old grandfather of the orphan boy saying that even the child was willing to be with the 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 principal. Emotionally also the grandparents will always take better care of their grandson. Grand Parents are more attached emotionally with grandchildren…,” Justice Shah, writing the judgement for the bench, said.

The bench, however, said the maternal aunt can have the visitation rights and meet the child once a month as per convenience.

“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 …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…, the balance would certainly tilt in favour of the paternal grandparents,” it said.

It is also expected to have video calling between the boy and the maternal aunt on a regular basis, it said, adding that the verdict should not be misunderstood that the maternal aunt may not take proper care of the minor son of her deceased sister.

“We request both, paternal grandparents and maternal aunt and her family (on the maternal side) to act jointly and cordially and have cordial relations which shall be in the larger interest of the minor… 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…,” it said. The apex court’s order would remain operational till the plea concerning the custody of the minor boy is decided in the competent court under Section 7 of the Guardians and Wards Act. The high court had noted that the boy was comfortable with the grandparents.

However, it had given the custody of the child to the maternal aunt on grounds such as that she was “unmarried, employed with the central government and residing in a joint family which would be conducive for the upbringing of the child.” The High Court, while handing over the custody of the minor, to his maternal aunt had considered the old age of paternal grandparents and the fact that the grandfather was a retired government servant, the apex court said in the verdict.

However, at the same time, it is required to be noted that the boy has shown his inclination to stay with the paternal grandparents, it said adding “There was no grievance made by the minor. On the contrary and as observed…, the minor has shown his willingness to stay with the appellant”.