While denying custody of her grandson, the Bombay High Court said that even if a grandmother and her grandchild share a special bond, it cannot be replaced by the natural bond between a child and his or her parents. The HC accordingly, handed over the custody of a 12-year-old boy to his biological parents and refused to send him back to his grandmother.
A bench of Justices Sambhaji Shinde and Manish Pitale said, "There can be no doubt about the fact that there is a special bond between a grandmother and her grandchild, but it cannot substitute the natural bond of parents with their child."
"The paramount consideration in such cases is welfare of the minor child. For reaching a conclusion regarding the welfare of the child include ethical upbringing, economic well-being of the guardian, the overall comfort of the child, contentment, health, education, physical mental and his intellectual development," the judges noted further.
Applying all these factors on the instant case before it, the bench noted that the parents of the child are financially sound but there was no record as regards the financial capability of the grandmother.
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As per the facts of the case, the biological parents had approached the bench led by Justice Shinde seeking custody of their son, who was presently living with his maternal grandmother in Nashik. The couple had sent the child to his maternal grandmother's house in 2019, as the biological mother had underwent a surgery and there was no one to look after him.
Living with the child for over a year, the grand mother refused to send him back to his parents. She even claimed that the child was harassed owing to the discord between his parents. However, she failed to submit any evidence to substantiate her claims.
"The parents of the child are his natural guardians and they clearly have the highest right of his custody. The child has lived with his parents from his birth till the age of about 11, when he had to shift to Nasik to live with his grandmother. Thus, it is not as if the child has all along lived with his grandmother, right from his birth," the judges noted.
"The parents of the child are well placed to take care of the educational, economic, emotional and other needs of the child," the bench concluded, while noting that his "ordinary comfort as also his future certainly lies with his parents."
The judges, however, noted that such matters need a "human touch and sensitivity" and accordingly allowed the grandmother to access the child in the first two months of his custody with the biological parents.
