Child "Emotionally Attached" To Her: Bombay HC Appoints Aunt As Guardian Of 4-Yr-Old; Cites Mother's Psychological Issues, Father's Aggression

Justice RI Chagla observed that the child is extremely attached to his aunt and took note of the psychological issues faced by his mother as well as the aggressive behaviour of his father while granting custody of the child to his aunt.

“I have interacted with the minor child xxxxxxx in my Chambers and have found that he is extremely attached to the Petitioner (aunt). Further, the biological mother, Respondent No.2 has deep psychological issues and this was noticed whilst passing of this Order in Court as there was a huge commotion caused by the Respondent No.2 which disturbed Court proceedings. The Respondent No.1 (father) is very aggressive and has acted in defiance of orders of this Court by stating that he will forcefully take Gabriel from the custody of the Petitioner”, the court observed.

The court had earlier attempted to facilitate a settlement between the parties, proposing shared custody of child. However, the proposal was met with resistance, especially from the father. Thus, the court ordered the appointment of a commissioner to determine the most suitable residence for the child.

The court commissioner's report, which assessed the living conditions of the petitioner as well as the biological parents stated that the aunt’s residence provided the best environment for the child's well-being and upbringing.

The Guardianship Petition filed by the aunt, a widow with no children of her own, sought to establish her as the legal guardian of her brother’s son, claiming that she had been taking care of him ever since he was born. The petition stated she is financially capable of taking care of the child and has been bearing all his expenses. The petition also highlighted the poor medical condition of the mother and claimed that the parents are not financially capable of taking care of the child.

The aunt relied on a report from Wadia Hospital, where the child was born in August 2019, which stated that the child was discharged in the custody of the petitioner with the consent of his parents. According to the aunt, the parents stayed at her house for a short while after the birth of the child. However, due to the inconvenient location of the house for medical treatment of the mother, they left, leaving the child with her for being looked after.

In March 2021, the child’s father filed a case against his sister alleging that she abducted the child. However, the police realised that she had been entrusted with his care by his parents, she said. The aunt claimed that in less than two months after handing over custody of the child to his parents, his health had deteriorated due to malnutrition at his parents’ house. After that, the parents willingly handed over the child to her, according to the aunt.

The father denied the petitioner’s claims in an affidavit and stated that the petitioner forcibly took the child from his parents by threatening them.

The court referred to several Supreme Court cases emphasizing that in such cases, the paramount consideration is that of the child's welfare. The judgments highlighted the importance of physical as well as moral and ethical well-being of the child.

“Although the above decisions of the Supreme Court are in the context of disputes between the parents as to custody of their minor child, in the peculiar circumstances of the present case, the principles governing the custody of the minor child laid down by the Supreme Court and the role of the Court in exercising its parens patriae jurisdiction will apply inspite of the Petitioner not being a parent but Aunt of the minor child”, the court stated.

The court noted that the aunt has been taking good care of the child and though there are police complaints of the father against her, “the fact is that the minor child xxxxxxx still remains with the Petitioner and the Respondents have consented to the same by visiting Gabriel at the residence of the Petitioner on his birthdays as can be seen from the photographs…”

Consequently, the court declared the petitioner as true and lawful guardian of the minor.

Advocates Filji Frederick, Archit Chaturvedi and Alisha Mohite i/b FF and Associates represented the aunt.

Advocate Rajiv Basant Chaudhary represented the parents. 

Case no. – Guardianship Petition No. 9 of 2023

Case Title – ABC v. XYZ