Mumbai: A grandparent’s emotional bond with the grandchild does not confer superior right to custody over that of the biological parent, the Bombay High Court said, while directing a senior citizen to hand over a minor's custody to his parents.
Background of the Dispute
The five-year-old child was kept in the care of his paternal grandmother as his biological parents had to take care of his twin brother, who is suffering from cerebral palsy. However, following disputes over property between the twins’ father and his parents, he sought return of his minor son’s custody.
Grandmother’s Contention Rejected
When the grandmother refused to hand over the custody, the father, an employee with the civic body, approached the high court. The grandmother opposed the plea contending that she has been taking care of the child since birth and hence they share an emotional bond.
Court’s Observations
A bench of Justices Ravindra Ghuge and Gautam Ankhad, on Thursday noted that the grandmother may share an emotional bond with the child but such attachment does not confer upon her a superior right to custody over that of the biological parent. It added that the rights of the biological parents over the child can be curtailed only if it is shown that granting them custody would be detrimental to the child’s welfare.
Parents Found Capable of Care
Moreover, there was no marital discord between the parents of the twins and there is nothing to show that they are incapable of caring for the child. “There is nothing on record to suggest that the Petitioner (father) is incapable of caring for his child. Significantly, the other twin, who suffers from cerebral palsy, is already in his care,” the court said.
Property Disputes Not a Factor
The judges underscored that the child cannot be denied the care of his parents merely because of disputes between their father and grandmother. Also property-related disputes cannot deprive the biological parents of their lawful custody.
Custody Order Issued
The bench in its order noted that the petitioner being the biological father and natural guardian has an undisputed legal right to claim custody of his child.
The court refused to accept the grandmother’s contention that the petitioner and his wife are emotionally and financially incapable of caring for the twins.
“In our view, Respondent No. 5 (grandmother) has no legal entitlement to retain custody of her grand-child vis-à-vis the Petitioner, more so when she is 74 years of age and herself has filed a complaint inter alia seeking maintenance from the Petitioner,” it added.
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Final Directions
The court ordered the grandmother to hand over custody of the child to the petitioner within two weeks, and granted visitation rights. The welfare of the child is of paramount consideration in custody matters, the court underlined.
