Law permits on certain conditions the child custody to the grandparents. Being the father and the mother is a natural guardian, the custody of the child remains with them. Grandparents were granted child custody in certain circumstances and conditions.
Before granting child custody two things should be considered by the court. They are (1) Controlling consideration governing the Custody of children is the welfare of children and not the right of their Parents as per Nil Ratan Kundu case in 2008 (9) SCC 413 (2) Paramount consideration is the welfare of the minor and not the legal right of a particular party as decided in 1993(1) RRR 413 (SC) (3) If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor. (4) In the Nil Ratan Kundu case child was called by Supreme Court in chamber and custody given to maternal grandparents in preference to father.
On determining the child custody court may not always give custody to parents alone but in extra ordinary circumstances it may also grant custody to the grand parents. Before determining the custodial rights courts should go the following acid test.
(1) Object of Guardian and Wards Act, 1890 is not merely physical custody of the minor but due protection of the rights of ward's health, maintenance and education.
(2) Due regard has of course to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship. 1973(1) SCC 840 relied.
(3) Simply because the father loves his children and is not shown to be otherwise undesirable does not necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him.
(4) First and the paramount consideration is the welfare of the child and not the right of the parent. JT 2008(6) SC 634 relied.
(5) Custody of child cannot be given merely on ground of financial soundness of the party - Paramount consideration should be welfare of minor.
(6) The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being.
(7) Father is natural guardian of minor, but paramount consideration is the welfare of the minor and not the legal right of a particular party.
(8) Keeping in mind the welfare of the child as the sole consideration, it would be proper to find out wishes of the child as to with whom he or she wants to live.
(9) Custody cases cannot be decided on documents, oral evidence or precedents without reference to 'human touch' - The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience. AIR 2003 Madras 315 relied on.
(10) A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents - In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.
(11) If the minor is old enough to form an intelligent preference or judgment, the Court must consider such preference as well, though the final decision should rest with the Court as to what is conducive to the welfare of the minor.
(12) Controlling consideration governing the custody of children is the welfare of children and not the right of their parents.
(13) One of the matters which is required to be considered by a Court of law is the 'character' of the proposed guardian.
On undergoing the above acid test child custody can be given to the grandparents instead of the father.