Grandmother’s bond with child doesn’t give her right to custody over parents: Bombay High Court

The child was in the care of his paternal grandmother, as his parents had to take care of his twin brother, who is suffering from cerebral palsy. Representation Pic/iSTOCK

The Bombay High Court has directed a woman to return custody of her five-year-old grandson to his biological parents, citing that her emotional bond with the child does not give her a superior right to his custody. The child was in the care of his paternal grandmother, as his parents had to take care of his twin brother, who is suffering from cerebral palsy.

However, due to a dispute over property, the child's father asked his 74-year-old mother to hand over custody, and when she refused, he approached the high court. The child's grandmother opposed the plea, claiming that she had been taking care of the child since birth and they shared an emotional bond.

A bench of Justice Ravindra Ghuge and Justice Gautam Ankhad 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. 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, the court held.

It further stated that there was no marital discord between the child's parents, and the father was employed with the city's civic body, and there was nothing to show that they were incapable of caring for the child. The child cannot be denied the care of his parents merely because of disputes between them and the grandmother, the court said, adding that property-related disputes cannot deprive parents of their lawful custody. The court added that the grandmother has no legal entitlement to retain custody of her grandchild, especially when she is 74 years old.

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. "Custody cannot be denied on the basis of these allegations," it observed.

The court ordered the grandmother to hand over the child's custody to the petitioner within two weeks. The welfare of the child is of paramount consideration in custody matters, it noted. The court, however, directed the parents to allow the grandmother to visit the child.

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