SWAMINATHAN KUNCHU ACHARYA versus STATE OF GUJARAT & ORS.

Citation: [2022] 6 S.C.R. 727 · Decided: 09-06-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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SWAMINATHAN KUNCHU ACHARYA
v.
STATE OF GUJARAT & ORS.
(Criminal Appeal No. 898 of 2022)
JUNE 09, 2022
[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Custody – Of minor child – 5 year old child lost his parents in
the Covid-19 pandemic – Appellant is paternal grandfather of the
child, and he and his wife– paternal grandparents sought custody
of the child – Writ petition seeking writ of habeas corpus filed by
appellant – Contesting Respondent No.4 is maternal aunt of the
child – High Court handed over custody to respondent No.4 – Held:
On facts and circumstances, High Court erred in not handing over
and/or continuing the custody of the corpus–grandson to appellant
/ paternal grandparents – 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 – 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 – Appellant/paternal grandparents
even managed to get admission of the minor in a school in
Ahmedabad (where appellant was staying) – The minor will get better
education in Ahmedabad, which is a Metro City compared to
education in Dahod where respondent no.4 was staying – Further,
being a retired person, the appellant / paternal grandparents would
devote more time and take care of minor better than respondent
No.4 who is serving in the government department – If balance is to
be struck between the paternal grandparents and the maternal aunt,
the balance would certainly tilt in favour of paternal grandparents
– Impugned judgment of High Court quashed and set aside –
However, the present order shall be subject to final outcome of the
proceedings u/s.7 of the Guardians and Wards Act, pending before
the competent court – Custody of minor corpus to continue with
appellant /paternal grandparents, who are directed to take care of
[2022] 6 S.C.R. 727
727
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SUPREME COURT REPORTS
[2022] 6 S.C.R.
the minor – However, respondent No.4 shall have visitation rights –
Further, during vacation and/or holidays the appellant may permit
the corpus to visit and stay with respondent No. 4, subject to wishes
and convenience of the corpus and without adversely affecting the
interest of the corpus including his education and even extra
curriculum activities – Paternal grandparents as well as maternal
aunt & her family (on maternal side) to act jointly and cordially
and have cordial relations in the larger interest of the minor – Writ
petition – Writ of habeas corpus.
Perry Kansagra v. Smriti Madan Kansagra, (2019) 20
SCC 753 and Ashish Ranjan v. Anupma Tandon and
Anr. (2010) 14 SCC 274 – referred to.
Case Law Reference
(2019) 20 SCC 753
referred to
Para 5.4
(2010) 14 SCC 274
referred to
Para 5.4
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.898 of 2022.
From the Judgment and Order dated 02.05.2022 of the High Court
of Gujarat at Ahmedabad in Special Criminal Application No.6708 of
2021.
D. N. Ray, Dillip Kumar Nayak, Ms. Disha Ray, Mrs. Sumita
Ray, Advs. for the Appellant.
Rauf Rahim, Ali Asghar Rahim, Advs. for the Respondents.
The Order of the Court was passed by
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 handed over the custody
of the corpus to the contesting respondent No. 4 herein – maternal aunt
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of the corpus, the 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 Covid-19. 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 Covid-
19, the minor cor
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