Income is not the only consideration to grant child custody, says Supreme Court

A Supreme Court bench comprising Justices, M. R. Shah and Aniruddha Bose has, on June 9, set aside an earlier decision of the Gujarat High Court in giving custody of a child of five years to his maternal aunt. The bench passed order in the case of Swaminathan Kunchu Acharya v. State of Gujarat, giving custody of the child to the paternal grandparents. The Leaflet breaks down this order to understand its relevance.


What did the impugned High Court order direct?

The child was staying with his parents in Ahmedabad until 2021. Due to the second wave of Covid-19, both the parents of the child expired within months of each other. While the parents of the child were infected, the child had stayed with his maternal aunt, against whom the High Court case was filed.

The paternal grandparents approached the High Court, alleging that they were not permitted to visit their grandson or even enter the house of their son. Despite this, the High Court still granted custody to the maternal aunt, though it directed her to provide the paternal grandparents a right to meet the child on a regular basis. It was also instructed that she find admission for the child in a school in Dahod, where she was staying, for the new academic year. Aggrieved by this decision, the paternal grandparents appealed against the Gujarat High Court’s decision.

The High Court had noted in its decision that the maternal aunt was a single woman who was a Central Government employee, and that she was a part of a joint family. In contrast, the paternal grandfather was a retired government employee, who was subsisting on a pension. It was argued that she was in a better position to look after the child since she had more education, had a decent salary and was a part of a bigger joint family. Therefore, the High Court opined that the custody of the child should be given to the maternal aunt.

Why did the Supreme Court set aside the decision?

However, the Supreme Court noted that the child had shown his inclination to stay with his paternal grandparents, through earlier High Court orders. The Supreme Court also noted that despite the existing factors, the grandparents will be more emotionally attached to their grandchildren. The appellants had also found admission for the child in a school in Ahmedabad, which is a metro city in comparison to Dahod. Being retired, they also have enough time to devote to the child. Income and having a bigger family cannot be the only criteria in determining custody. It also noted that the maternal aunt should have visitations rights regularly, and that during vacations or holidays can be permitted to visit her and stay with her.

Also read: Supreme Court rules parental rights irrelevant in custody battles: why the decision may backfire

What was the reasoning?

Between the two, the Supreme Court opined that “the balance would certainly tilt in favour of the paternal grandparents” while noting that this decision should not be misunderstood to mean that the maternal aunt cannot take care of her nephew. Beyond this assertion, the Supreme Court neglected to give any reasoning as to why grandparents may be better suited. It lastly directed that both parties should act jointly and cordially in the larger interest of the minor child, especially given that at the young age of five, he has lost both parents.

If one were to speculate on the reasoning, what could it be?

The Supreme Court has prioritised emotional security over economic security in this case. It also made the child’s holistic education and development a factor, stating that he would have a better upbringing in a metro city such as Ahmedabad instead of Dahod.

Also read: Kerala mother’s battle for custody of her child: Law versus patriarchy

Is the decision binding?

This is an order from a Criminal Appeal under Article 132. It will not be a binding precedent on lower courts, since it is an order and because it has no jurisprudential analysis. Since no specific reasoning is articulated for choosing the grandparents over the aunt, it is unlikely to be applied in other cases involving grandparents and aunts or uncles.