Holding

The welfare of the child being paramount, the Court allowed the grandmother to retain custody of the child until she attains majority, setting aside the lower courts' orders in favor of the father.

Summary

The case concerned custody of a minor female child whose mother died at birth. The child had been raised by her maternal grandmother (the appellant) since infancy, while the father (the respondent) sought custody as the natural guardian under the Guardian and Wards Act, 1890. The Family Court and the High Court had both awarded custody to the father, but the Supreme Court reversed those decisions, emphasizing that the father's legal right is not absolute and that the child's welfare is the paramount consideration. The Court noted the strong emotional bond between the child and the grandmother, the child's stable schooling, the grandmother's financial independence, and the father's modest income, indebtedness, and second marriage, which raised doubts about his ability to provide a suitable environment. Consequently, the Court allowed the appeal and ordered that the grandmother retain custody of the child until she reaches the age of majority.

Issues considered

The father, as natural guardian under the Guardian and Wards Act, 1890, is entitled to custody of the minor child notwithstanding the child's long‑term residence with the maternal grandmother.
Whether the welfare and best interests of the child outweigh the statutory preference for the natural guardian.
Whether the father's financial condition, indebtedness and second marriage affect his fitness as a guardian.
Whether the court may deprive the natural guardian of custody in favor of a grandparent.

Legislation cited

Guardian and Wards Act, 1890

Subjects

custodyminor childguardian and wards actwelfare of childnatural guardiangrandmotherfamily lawparental rights

Judgment

[2009] 6 S.C.R. 560

A SMT. ANJALI KAPOOR
V.
RAJIV BAIJAL
(Civil Appeal No. 2628 of 2009)
APRIL 17, 2009
B
[TARUN CHATTERJEE AND H.L. DATTU, JJ.]
\
Guardian and Wards Act, 1890 - Custody of minor
female child - Mother of the child died at the time of her bilth
c - Since then the child is staying with her maternal
grandmother (appellant) - Father (respondent) seeking
custody of the child - Both Family Coult and High Coult held
in favour of the father- On appeal, held: Ordinarily, the natural
guardian of the child has the right to custody of the child, but
D that right is not absolute - Welfare of child is the paramount
consideration ...: On facts, the minor child is staying with
appellant since birth which has resulted into a strong
emotional bonding between the two - She is also studying in
a reputed school - Appellant has taken proper care and
attention in upbringing of the child and being a woman herself
E
can very well understand the needs of the child - Appellant
is also financially sound as she runs her own independent
business - On the other hand, respondent has borrowed
,noney from several persons and since he has a meager ·I

income, he may not be in a position to give comfortable living
F for the child - In spite of notices issued to him, he did not
appear before Coult personally or through counsel which
shows his Jack of concern in the matter - Also in the
meanwhile, he got married for the second time and has a child
too from that marriage, and the minor child might have to be
G in care of the step mother, especially since the father being
a businessman, has to be out of the house frequently on
account of business - The child has remained with appellant
for a long time and is growing up well in an atmosphere which

H 560
ANJALI KAPOOR v. RAJIV BAIJAL 561

is conducive to her growth - It may nbt be proper at this stage A
for diverting the environment to which the child is used to - .
Appellant allowed to retain custody of the child till she attains
the age of majority.

Dispute arose over custody of a minor female child
8
between her father (respondent) and maternal
grandmother (appellant). The mother of the child had died
at the time of her birth and since then the child is staying
with the appellant.

Respondent filed application under the Guardian and C
Wards Act, 1890 asserting that he, being the father of the
child, was her natural guardian and therefore entitled to
her custody. The Family Court held in favour of
respondent. On appeal, the High Court also held in
favour of the respondent. Hence the present appeal. D
Allowing the appeal, the Court
HELD:1.1. Under the Guardian and Wards Act, 1890,
the father is the guardian of the minor child until he is
found unfit to be the guardian of the minor female child. E
In deciding such questions, the welfare of the minor child
is the paramount consideration and such a question
cannot be decided merely based upon the rights of the
parties under the law. [Para 10] [567-C]
F
1.2. In the present case, the appellant is taking care
of '.A', the minor female child, since her birth, when she
had to go through intensive care in the hospital, till today.
The photographs produced by the appellant along with
the petition, which is not disputed by the other side would G
clearly demonstrate, the amount of care, affection and the
love that the grandmother has for the child having lost
her only daughter in tragic circumstances. She wants to
see her daughter's image in her grand child. She has
bestowed her attention throughout for the welfare of
reminiscent of her only daughter, that is the minor child H
562 SUPREME COURT REPORTS (2009] 6 S.C.R.

A which is being dragged from one end to another on the
so called perception of judicial precedents and the
language employed by the legislature on the right of
natural guardian for the custody of minor child. [Para 18]
[569-E, F]
B
1.3. 'A' is staying with the appellant's family and is
also studying in a reputed school. The appellant has
taken proper care and attention in upbringing of the child,
which is one of the important factors to be considered
for the welfare of the child. 'A' is with the appellant right
C from her childhood which has resulted into a strong
emotional "bonding between the two and the appellant
being a woman herself can very well understand the
needs of the child. It also appears that appellant, even
after her husband's demise, is financially sound as she
D runs her own independent business. [Para 19] [569-H;
570-A]
1.4. Considering the evidence of the respondent, it
seems that since he has borrowed money from several
E persons and since he has a meager income he may not
be in a position to give comfortable living for the child.
lnspite of notices issued to him, he has not appeared
before the Court personally or through his counsel which
shows. his lack of concern in the matter. It is also brought
F to the notice of this Court 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. [Para 20]
G [570-C, D]
1.5. Ordinarily, under the Guardian and Wards Act,
the natural guardian of the child has the right to the
custody of the child, but that right is not absolute and the
Courts are expected to give paramount consideration to
H the welfare of the minor child. The child has remained with
__,,,

ANJALI KAPOOR v. RAJ IV BAIJAL 563

.I
the appellant/grandmother for a long time ~nd is growing · A
up well in an atmosphere which is conducive to her
growth. It may not be proper at this stage for diverting the
environment to which the child is used to. Therefore, it
is desirable to allow the appellant to retain the custody
of the child. The appellant is permitted to have the B
custody of the child till she attains the age of majority.
[Paras 21 and 22] [570-E, F, G]
/
' Muthuswami Moopanar AIR 1935 Madras 195,
approved
c
Sumedha Nagpa/ v. State of Delhi (2009) 9 SCC 745;
Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840
and Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr.
AIR (1987) SC 3, referred to.
D
Mc.Grath (infants) Re (1893) 1 Ch. 143:62 LJ Ch. 208
.. (CA) and Walker v. Walker & Harrison 1981 New Ze Recent
Law 257, referred to.

American Jurisprudence, 2nd Edn., Vol. 39, referred to.
E
._ Case Law Reference:
(2009) 9 sec 145 referred to Para 10
(1973) 1 sec 840 referred to Para 11
•
AIR (1987) SC 3 referred to Para 12
F

AIR 1935 Madras 195 approved Para 13
(1893) 1 Ch. 143 referred to Para 15
1981 New Ze Recent Law 257 referred to Para 17 G
)
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2628 of 2009.

From the Judgment & Order dated 03.08.2007 of the High
H
564 SUPREME COURT REPORTS [2009] 6 S.C.R.

A Court of Madhya Pradesh Bench at Indore in Misc. Appeal No.
750 of 2004.

Vivek K. Tankha, B.K. Satija, Harsh Pathak, Anusha Singh,
Ratna Kaul and Sidhartha Gupta for the Appellant(s).
B The Judgment of the Court was delivered by

H.L. DATIU,J. Leave granted.
\
1. This appeal is directed against the judgment and order
passed by the High Court of Judicature at Indore in
c Miscellaneous Appeal No. 750 of 2004 dated 03.08.2007. By
the impugned judgment, the High Court has directed that the
custody of the child be handed over to the respondent/father.

2. The facts of case in brief are: - the respondent/Rajiv
D Baijal, had got married to the appellant's daughter/Meghana on
16.01.1998 and lived together in Pune (Maharashtra}. Smt. ~

Meghana went to Indore to the appellant's residence for
delivery of the child. She was admitted in Noble Hospital, Indore
and gave birth to a female child on 20.05.2001, but she did not
E survive to see the new born baby. As the child was born
premature, she was kept in incubator in the hospital for nearly
45 days. After discharge from the hospital, the infant was
brought to the residence of the appellant, and she was named
Anagh. Add to the agony, just in a span of two months,
F appellant lost her husband also on 29.07.2001.
3. The Respondent herein filed an application under
Guardian and Wards Act before the Family Court, inter-alia
asserting that being the father of the child Anagh, he is her
natural guardian and therefore, entitled to the custody of the
G child. In support of the claim made, the respondent had
asserted before the Family Court that Anagh was not properly
looked after by the appellant and it was perilous for the child
to continue in the custody of the appellant. The respondent had
also contended that after the child was brought to the residence
H
ANJALI KAPOOR v. RAJIV BAIJAL [H.L. DATIU, J.] 565

~
of the appellant he was repeatedly requesting 1:1e appellant and A
her family members to hand over the custody of the child to him,
since the appellant is unable to take care of the welfare of the
minor child.

4. In the reply filed, the appellant had contended, that, the B
respondent had not come to see his daughter even once when
the child was in the intensive care unit in the hospital. She had
further contended that the respondent is living separately from
¥
his parents and he has to be away from his nome town most
of the· time in a month in view of the nature of the job he is
involved in. It was also contended' that the financial position of
c
the respondent is not good and he had taken loans from several
. persons, and in order to repay the same, on many occasions,
he had asked for financial help from the appellant and her family
members. In a nutshell, her claim before the Family Court was
that it is not conducive for the welfare of the child to be in the D
company of the respondent.

5. The Family Court, Indore in its order dated 18.3.2004,
has observed that, it cannot be concluded that the respondent
although has borrowed money from several persons, will not be E
in a position to bring up her daughter and bear her educational
expense. The Court has also taken note of the fact that the child/
Anagh is taken care of by appellant's brother-in-law, who has
two grown-up children, and therefore, it cannot be said that the
• respondent will not be in a position to take care of the welfare F
of the child. Therefore, giving priority to the welfare of minor
child, it is advisable to give custody of minor child - Anagh to
the respondent, where she will be looked after well by
..... respondent and his family members. Aggrieved by the said
order, the appellant had carried the matter to the High Court, G
by filing Misc. Appeal No. 750 of 2004.
!'
6. The High Court in its judgment has held, that there are
no compelling reasons on the basis whereof the custody of the
child should be denied to her father/respondent. Respondent
has been making efforts right from the infancy of the child for H
566 SUPREME COURT REPORTS [2009] 6 S.C.R.

A guardianship of the child which was strongly resisted by his ~

mother-in-law. The Court has also taken note of the fact that,
the appellant has lost her husband and has, therefore, suffered
a great financial set back. Therefore, for better upbringing and
welfare of the child, her custody should be entrusted to her
B father. Aggrieved by the said judgment, appellant is before us.
7. Notice was ordered to be issued to the respondent on
28.09.2007 to appear before the court on 16.10.2007. Since
the same was returned unserved, a fresh notice came to be
c ordered. Dasti, in addition was also permitted for effecting
service of the special leave petition on the sole respondent. In
view of the affidavit of dasti notice filed by learned counsel for
petitioner, he was permitt~d to take out notice of the special
leave petition by publishing the same in two newspapers which
has wide circulation in Pune (Maharashtra). Even this was
D carried out by the petitioner by publishing the notice of special
leave petition in "Sandhyand" and "Free Press" which has wide
circulation in Pune (Maharashtra). In spite of such publication,
the respondent has not appeared before this court either in
person or through his learned counsel. Therefore, while
E deciding this appeal, we did. not have the assistance of either
the respondent nor his learned counsel.

8. The learned counsel for the appellant would contend,
that, the appellant is financially sound as she has a flourishing
F garment business and is residing in a joint family. Presently •
Anagh is being looked after by the appellant's family, and she
is studying in a well known public school and is leading a happy
life. The counsel would further contend, that, the respondent has
meager income of Rs. 5,500 p.m. and will not be able to take
good care of Anagh. It is further submitted that the respondent's
G
mother is not well and also his father is suffering from High
Blood Pressure and Asthama and they will also not be in a -'\
position to help the respondent to take care of the daily needs
of the minor child. The counsel would further contend that
respondent and any of his family members or relative, after
H
ANJALI KAPOOR v. RAJIV BAIJAL [H.L. DATTU, J.] 567
-4
passing of the impugned order till date never contacted the A
appellant to enquire about the welfare of Anagh. It is further
submitted that the respondent has lost interest not only in the
case but also in his daughter, since he has contracted second
marriage sometime during the year 2007.
B
9. The question for our consideration is, whether in the
present scenario would it be proper to direct the appellant to
hand over the custody of the minor child/Anagh to the
respondent.

10. Under the Guardian and Wards Act, 1890, the father c
is the guardian of the minor child until he is found unfit to be
the guardian of the minor female child. In deciding such
questions, the welfare of the minor child is the paramount
consideration and such a question cannot be decided merely
based upon the rights of the parties under the law (See D
Sumedha Nagpal "v. State of Delhi, (2000) 9 SCC 745).

11. In the case of Rosy Jacob v. Jacob A. Chakramakkal,
(1973) 1 SCC 840, this Court has observed that, the principle
on which the Court should decide the fitness of the guardian
mainly depends on two factors: (i) the father's fitness or E
otherwise to be the guardian, and (ii) the interests of the minors.
This Court considering the welfare of the child also stated that,
-f
the children are not mere chattels: nor are they mere playthings
for their parents. Absolute right of parents over the destinies
and the lives of their children have, in the modern changed F
social conditions, yielded to the considerations of their welfare
as human beings so that they may grow up in a normal
balanced manner to be useful members of the society."

12. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and G
t
Anr. (AIR 1987 SC 3), this Court has observed that whenever
a question arises before Court pertaining to the custody of the
minor child, the matter is to be decided not on consideration
of the legal rights of the parties but on the sole and predominant
criterion of what would best serve the interest and welfare of H
568 SUPREME COURT REPORTS [2009] 6 S.C.R.

A the child.

13. At this stage, it may be useful to refer to the decision
of Madras High Court, to which reference is made by the High
Court in the case of Muthuswami Moopanar (AIR 1935 Madras
195), wherein the Court has observed, that, if a minor has for
8
many years from a tender age lived with grand parents or near
relatives and has been well cared for and during that time the
minor's father has shown a lack of interest in the minor, these •
are circumstances of very great importance, having bearing
upon the question bf the interest and welfare of the minor and
C on the banafide of the petition by the father for their custody.

14. In our view, the observations made by the Madras High
Court cannot be taken exception by us. In fact those
observations are tailored made to the facts pleaded by the
o appellant in this case. We respectfully agree with the view
expressed by the learned Judges in the aforesaid decision.

15. In McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch
208 (CA), it was observed that, " ... The dominant matter for
the consideration of the court is the welfare of the child. But the
E welfare of a child is not to be measured by money only, or by
physical comfort only. The word welfare must be taken in its
widest sense. The moral or religious welfare of the child must
be considered as well as its physical well-being. Nor can the
ties of affection be disregarded."
F
16. In American Jurisprudence, 2nd Edn., Vol. 39, it is
stated that an application by a parent, through the medium of
a habeas corpus proceeding, for custody of a child is
addressed to the discretion of the court, and custody may be
G withheld from the parent where it is made clearly to appear that
by reason of unfitness for the trust or of other sufficient causes
the permanent interests of the child would be sacrificed by a
change of custody. In determining whether it will be for the best
interest of a child to award its custody to the father or mother,
H the Court may properly consult the child, if it has sufficient
ANJALI KAPOOR v. RAJIV BAIJAL [H.L. DATIU, J.] 569

judgment." A

17. In Walker v. Walker & Harrison, 1981 New Ze Recent
Law 257, The New Zealand Court (cited by British Law
Commission, Working Paper No. 96) stated that "welfare is an
all-encompassing word. It includes material welfare; both in the B
sense of adequacy of resources to provide a pleasant home
and a comfortable standard of living and in the sense of an
adequacy of care to ensure that good health and due personal
pride are maintained. However, while material considerations
have their place they are secondary matters: More important C
are the stability and the security, the loving and understanding
care and guidance, the warm and compassionate
relationships that are essential for the full development of the
child's own character, personality and talents."

18. Bearing these factors in mind, we proceed to consider D
as to who is fit and proper to be the guardian of the minor child
Anagh in the facts and circumstances of this case. In the
present case, the appellant is taking care of Anagh, since her
birth when she had to go through intensive care in the hospital
till today. The photographs produced by her along with the E
petition, which is not disputed by the other side would clearly
demonstrate, the amount of care, affection and the love that the
grandmother has for the child having lost only daughter in a
tragic circumstances. She wants to see her daughter's image
in her grand child. She has bestowed her attention throughout F
for the welfare of reminiscent of her only daughter, that is the
minor child which is being dragged from one end to another
on the so called perception of judicial precedents and the
language employed by the legislatures on the right of natural
guardian for the custody of minor child. G

19. Anagh is staying with the appellant's family and is also
studying in one of the reputed school in Indore. It must be stated
that the appellant has taken proper care and attention in
upbringing of the child, which is one of the important factor to
be considered for the welfare of the child. Anagh is with the H
570 SUPREME COURT REPORTS (2009] 6 S.C.R.

A appellant right from her childhood which has resulted into a
strong emotional .bonding between the two and the appellant
being a woman herself can very well understand the needs of ·
the child. It also appears that appellant, even after her husband's
demise, is financially sound as she runs her own independent
8 business.

20. On the other hand, considering the evidence of the
respondent, it seems to us that since he has borrowed money
from several persons and since he has a meager income he
C may not be ·in a position to give comfortable living for the child
In spite of notices issued to him, he has not appeared before
the Court personally or through his counsel which shows his lack
of concern in the matter. 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,
D specially the father being a businessman, he has to be out of
the house frequently on account of his business.

21. Ordinarily, under the Guardian and Wards Act, the
natural guardians of the child have the right to the custody of
E the child, but that right is not absolute and the Courts are
expected to give paramount consideration to the welfare of the
minor child. The child has remained with the appellant/
grandmother for a long time and is growing up well in an
atmosphere which is conducive to its growth. It may not be
F proper at this stage for diverting the environment to which the
child is used to. Therefore, it is desirable to allow the appellant
to retain the custody of the child.

22. In view of the above discussion, we allow this appeal
and set aside the impugned order. We permit the appellant to
G have the custody of the child till she attains the age of majority.
No order as to costs.

8.8.8. Appeal allowed.

H