SMT. ANJALI KAPOOR versus RAJIV BAIJAL

Citation: [2009] 6 S.C.R. 560 · Decided: 17-04-2009 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 6 S.C.R. 560 
A 
SMT. ANJALI KAPOOR 
V. 
RAJIV BAIJAL 
(Civil Appeal No. 2628 of 2009) 
APRIL 17, 2009 
B 
[TARUN CHATTERJEE AND H.L. DATTU, JJ.] 
\ 
Guardian and Wards Act, 1890 - Custody of minor 
female child - Mother of the child died at the time of her bilth 
c -
Since then the child is staying with her maternal 
grandmother (appellant) - Father (respondent) seeking 
custody of the child - Both Family Coult and High Coult held 
in favour of the father- On appeal, held: Ordinarily, the natural 
guardian of the child has the right to custody of the child, but 
D that right is not absolute - Welfare of child is the paramount 
consideration ...: On facts, the minor child is staying with 
appellant since birth which has resulted into a strong 
emotional bonding between the two - She is also studying in 
a reputed school - Appellant has taken proper care and 
E attention in upbringing of the child and being a woman herself 
can very well understand the needs of the child - Appellant 
is also financially sound as she runs her own independent 
business - On the other hand, respondent has borrowed 
,noney from several persons and since he has a meager 
·I 
F 
income, he may not be in a position to give comfortable living 
for the child - In spite of notices issued to him, he did not 
appear before Coult personally or through counsel which 
shows his Jack of concern in the matter - Also in the 
meanwhile, he got married for the second time and has a child 
too from that marriage, and the minor child might have to be 
G in care of the step mother, especially since the father being 
a businessman, has to be out of the house frequently on 
account of business - The child has remained with appellant 
for a long time and is growing up well in an atmosphere which 
H 
560 
ANJALI KAPOOR v. RAJIV BAIJAL 
561 
is conducive to her growth - It may nbt be proper at this stage 
A 
for diverting the environment to which the child is used to - . 
Appellant allowed to retain custody of the child till she attains 
the age of majority. 
Dispute arose over custody of a minor female child 
8 
between her father (respondent) and maternal 
grandmother (appellant). The mother of the child had died 
at the time of her birth and since then the child is staying 
with the appellant. 
Respondent filed application under the Guardian and 
C 
Wards Act, 1890 asserting that he, being the father of the 
child, was her natural guardian and therefore entitled to 
her custody. The Family Court held in favour of 
respondent. On appeal, the High Court also held in 
favour of the respondent. Hence the present appeal. 
D 
Allowing the appeal, the Court 
HELD:1.1. Under the Guardian and Wards Act, 1890, 
the father is the guardian of the minor child until he is 
found unfit to be the guardian of the minor female child. 
E 
In deciding such questions, the welfare of the minor child 
is the paramount consideration and such a question 
cannot be decided merely based upon the rights of the 
parties under the law. [Para 10] [567-C] 
1.2. In the present case, the appellant is taking care 
of '.A', the minor female child, since her birth, when she 
had to go through intensive care in the hospital, till today. 
The photographs produced by the appellant along with 
F 
the petition, which is not disputed by the other side would 
G 
clearly demonstrate, the amount of care, affection and the 
love that the grandmother has for the child having lost 
her only daughter in tragic circumstances. She wants to 
see her daughter's image in her grand child. She has 
bestowed her attention throughout for the welfare of 
reminiscent of her only daughter, that is the minor child 
H 
562 
SUPREME COURT REPORTS 
(2009] 6 S.C.R. 
A which is being dragged from one end to another on the 
so called perception of judicial precedents and the 
language employed by the legislature on the right of 
natural guardian for the custody of minor child. [Para 18] 
[569-E, F] 
B 
1.3. 'A' is staying with the appellant's family and is 
also studying in a reputed school. The appellant has 
taken proper care and attention in upbringing of the child, 
which is one of the important factors to be considered 
for the welfare of the child. 'A' is with the appellant right 
C from her childhood which has resulted into a strong 
emotional "bonding between the two and the appellant 
being a woman herself can very well understand the 
needs of the child. It also appears that appellant, even 
after her husband'

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