Mumbai: The Bombay High Court has refused to grant custody of a four-year-old girl to her paternal aunt after considering the fact that the child`s father has been arrested for her mother`s death.
A division bench of justices D Y Chandrachud and S C Gupte also took into consideration that the paternal aunt had sought custody of the child only on instruction from her brother, who is in jail, and had no personal desire to be the guardian of the minor child.
The court, while granting custody of the girl to her maternal grandparents with whom she has been living since the death of her mother in 2012, observed, "The welfare of the minor is above all, the most important consideration. All along the child had been in the care and under the protection of her maternal grandparents."
The bench, in its order delivered Friday, observed that the maternal grandparents have the capacity, both financially and physically, to look after the welfare of their grandchild.
The court was hearing guardian petitions filed by the maternal grandparents and paternal aunt seeking custody of the minor child.
The child`s parents got married in October 2008. While the father is a Roman Catholic, the mother was a Hindu. The girl was born in March 2009.
The child`s mother died an unnatural death in May 2012. Her father was arrested and had been charged for murder under section 302 of the IPC and under section 498A for dowry harassment. He is presently lodged in the Arthur Road prison.
Refusing to grant custody to the paternal aunt, the court said, "She (aunt) has evidently not had any experience of living with the child. Moreover, the averments in her petition would indicate that she had no personal desire to be guardian of her own accord, since the filing of her guardianship petition was on the instructions of her brother who is now in jail."
"In the present case, the following circumstances are of crucial importance - the minor is a girl child, who is a little over four years of age; the mother of the child has died an unnatural death and the father is in jail as an under trial facing prosecution on a charge of murder; the child has resided continuously since the death of her mother with her maternal grandparents," the court said.