Case Brief: Anjali Kapoor vs Rajiv Baijal

Name of the Case	Anjali Kapoor vs Rajiv Baijal
Citation	2009 INSC 556
Date of the Judgement	17.04.2009
Petitioner	Anjali Kapoor
Respondent	Rajiv Baijal
Bench/ Judges	Tarun Chatterjee and H.L. Dattu, JJ.
Statutes Involved	Guardians and Wards Act, 1890
Important Articles/ Sections	Protection of Women from Domestic Violence Act (2005)- Section 2(f), Section 3(a); Criminal Procedural Code 1973- Section 125

FACTS OF THE CASE

The respondent-husband got married to the appellant’s daughter, Meghna, in 1998 and lived in Pune. Meghna went to Indore, to the appellant’s home, for the delivery of her child. She gave birth to a daughter, but was born premature and therefore she was kept in an incubator for nearly 45 days. However, the mother died. After being discharged, the infant was brought to the residence of the appellant, but within two months, the appellant lost her husband. 

The respondent filed an application under the Guardian and Wards Act, asserting that he is the natural guardian of the infant and that in the appellant’s custody. The family court concluded that the child will be in the custody of the respondent. Aggrieved, the appellant preferred an appeal to the High Court, which upheld the verdict of the family court.  

PROVISIONS INVOLVED

Guardians and Wards Act, 1890

Section 7: Power Of The Court to make Order as to Guardianship

Section 9: Court having Jurisdiction to Entertain Application 

LEGAL ISSUES

1. Whether the custody of the minor child be handed over to the respondent?

ARGUMENTS FROM THE APPELLANT’S SIDE

1. She contended that the respondent had not come to see his daughter even once, even when the child was in the Intensive Care Unit. 
2. Respondent has moved away from his parents' home and is living separately. He is away from the town most of the time for a month, in view of the nature of the job he is involved in. 
3. The financial position of the respondent is not good, and he has taken loans from numerous people. On many occasions, he had asked for financial support from the appellant as well.
4. It is not in the best interest of the child to live with the father.
5. The learned counsel contended that the appellant is in a financially sound position and her garments business has been flourishing. 

ARGUMENTS FROM THE RESPONDENT’S SIDE

1. He asserted that the infant is not properly looked after under the custody of the appellant.
2. Being the father, he is her natural guardian and therefore he is entitled to custody of the child.
3. He asserted that the respondent had been requesting the appellant and her family members to hand over the custody of the child to him since the appellant is unable to take care of the child.

COURT’S STANCE AND JUDGMENT

The bench observed that even though natural guardians of the child have the right to the custody of the child, the welfare of the minor child has to be given paramount consideration. 

The court observed that under the Guardian and Wards Act, the father is the natural guardian of the minor child until he is found unfit to be the guardian. The welfare of the child is of paramount consideration, and a question cannot be decided based on the rights of the parties.

The bench relied on observation in the case of Rosy Jacob v. Jacob A. Chakramakkal, where the principle on which the court should decide the fitness of the guardian mainly depends on two factors. (i) the father’s fitness to be a guardian; and (ii) the interest of the minors.

It was noted that the appellant had been taking care of the minor child since birth, when she was in the ICU, till today. It is undisputed that the amount of care and affection that a grandmother has for her child who has recently lost her only daughter. Now the minor child is receiving proper education in one of the reputed schools. It must be stated that the appellant had taken proper care and attention in the upbringing. Moreover, the minor child has been with the appellant since her childhood, that had resulted in the formation of a close bond between the two. And the appellant is financially sound too, as she runs her independent business. 

On the other hand, it is noted that the respondent had borrowed money from several people, and he has a meager income to be in a position to give a comfortable living for the child. In spite of notices issued to him, he has not appeared before the court personally, which shows his lack of concern in the matter.

Therefore, the appellant is permitted to have the custody of the child till she attains the age of majority. 

CONCLUSION

This case is landmark in highlighting that if the circumstances are otherwise, even the statutory rule can be bent to suit the best interest of the child. In this case the bench handled the crucial case which dealt with a life changing question of retaining the custody of the child and handed over the custody to her grandmother. Highlighting that the court considers what is of paramount interest to the child.