The Supreme Court has ruled that custody of a minor can be given even to a maternal grandmother if the father is incapable of taking adequate care of the child.
The Supreme Court has ruled that custody of a minor can be given even to a maternal grandmother if the father, who is a natural guardian, is incapable of taking adequate care of the child.
The apex court said though the law mandates that the father is the natural guardian of a child, the right at the same time is not absolute.
"Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the courts are expected to give paramount consideration to the welfare of the minor child," a bench of justices Tarun Chatterjee and HL Dattu said.
The apex court passed the ruling while granting custody of a minor girl Angha to her maternal grandmother Anjali Kapoor.
Earlier, a trial court and the Madhya Pradesh High Court, both had directed the custody of the child to Rajiv Baijal as he was a natural guardian.
The custody battle commenced after Rajiv's wife Meghna died on May 5, 2001 after delivering the premature child.
Anjali's case was that Rajiv was incapable of taking care of the child as he failed to visit her at the hospital when she was in the incubator nor does he have the financial wherewithal to bring up her in a good way as he was earning a meagre Rs 5,000 odd salary per month.
However, the trial court and later the high court turned down Anjali's plea following which she appealed in the Supreme Court.
Upholding the grandmother's plea, the apex court noted that despite several notices, Rajiv failed to file his reply or appear in the court and had also married for the second time.
The apex court noted that the child in the meantime had adapted herself with the family of the grandmother in an atmosphere which was conducive for her growth.
"On the other hand, considering the evidence of the respondent (Rajiv), it seems to us that since he has borrowed money from several persons and since he has a meagre income he may not be in a position to give comfortable living for the child.
"It is also brought to our notice that he has got married for the second time and has a child too, and the minor child might have to be in the care of step mother, specially the father being a businessman, he has to be out of the house frequently on account of his business," the apex court said.
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