Sole criteria for child custody cannot be based on income, age and bigger family: Supreme Court

The court has observed that the income, age, and bigger family cannot be the only option to take child custody. The court observed that while it granted custody of a five-year boy who lost his parents due to covid to his paternal grandfather.

The facts of the recent case where the child custody is not based on income, age and more prominent family are that the paternal grandparents have filed a writ petition in the court alleging that the maternal aunt is not allowing them to meet their paternal grandparents and the High Court has given the custody to the maternal aunt. The aggrieved paternal grandparents approached the Supreme Court, the appellant that is the paternal grandfather argued that merely he is aged 71 years and his wife aged 63 years, it cannot be presumed that they are not in a better position to take better care of their grandson. And on the other side, the maternal aunt stated that she is in a better position to look after and take care of the boy than the paternal grandparents. 

While agreeing with the argument of the paternal grandfather, the court observed there cannot be any presumption that the maternal aunt, being unmarried with an independent income, younger than the paternal grandparents and having a bigger family, would be able to take better care than the paternal grandparents. In our society still, paternal grandparents would always take better care of their grandchild. One should not doubt the capacity and the ability of the grandparents, they can always love and take care of their grandchild emotionally and strongly. 

While keeping aside the High court order. the Supreme court observed that the present order shall be subject to the outcome of the proceedings under section 7 of the Guardian and Wards Act, pending before the competent court. So, the apex court requested both the paternal grandparents and maternal aunt and her family to act jointly and cordially and make good relations with each other which shall be in the interest of the child. And t forget the bitterness and forget the past and look about the future a child who unfortunately lost his parents at such a small age and closed the present proceeding while disposing of this appeal. 

Section 7 states the power of the court to make an order as to guardianship under the Guardian and ward act such as when the court is satisfied that it is for the welfare of a minor that an order should be made in appointing a guardian of his person or property or both and declaring such person to be his or her guardian. 

An order under this section shall imply the removal of any guardian who has not been appointed by will or declared by the court. While a guardian appointed under this section by will or declared by the court cannot appoint the other person guardian of this section.