Swaminathan Kunchu Acharya vs The State Of Gujarat on 9 June, 2022


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Supreme Court of India

Swaminathan Kunchu Acharya vs The State Of Gujarat on 9 June, 2022

Author: M.R. Shah

Bench: M.R. Shah, Aniruddha Bose

                                                                    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)


                                            ORDER

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

Digitally signed by
SWETA BALODI
Date: 2022.06.09
handed over the custody of the corpus to the contesting
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.

3. Shri D.N. Ray, learned counsel has appeared on behalf of

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.

5. Shri Rauf Rahim, learned counsel appearing on behalf of

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.

7. At the outset, it is required to be noted that the appellant is

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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