Welfare Of Child Is Of Paramount Consideration: Bombay HC Grants Guardianship To Caregiver Over Biological Parents

A Bench of Justice R.I. Chagla found, “I have interacted with the minor child Gabriel in my Chambers and have found that he is extremely attached to the Petitioner. 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 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.”

Advocate Filji Frederick appeared for the Petitioner and Advocate Rajiv Basant Chaudhary appeared for the Respondents.

The petitioner argued that she had been taking care of him since his birth, providing for all his needs and ensuring his well-being. The respondents, who were biological parents, contested the petitioner's claims, alleging that their child was forcibly taken from them and seeking his custody back.

The respondents filed affidavits denying the petitioner's contentions and claiming that they had requested his return, but the petitioner refused. The Court also considered WhatsApp communications and photographs, which showed the respondents visiting the child at the petitioner's residence and acknowledging the petitioner as his caregiver.

The Court said, “It is well settled by the Supreme Court that the welfare of the child is of paramount consideration whilst determining the issues arising under the Guardianship Act.” Citing relevant Supreme Court judgments, the Court reiterated that the decision must consider the child's physical, emotional, and moral well-being. It also emphasized that the court's role is to exercise its parens patriae jurisdiction, focusing on the child's welfare rather than strict legal provisions.

After considering all the evidence, including a report from a court-appointed commissioner who assessed the living conditions of both parties, the Court found in favor of the petitioner.

The Court noted the petitioner's stable financial position, her emotional bond with child, and the supportive environment she provided for the child. Additionally, the Court highlighted the respondents' aggressive behavior and the psychological issues faced by his biological mother.

The Court said, “Having taken into consideration the welfare of the minor child Gabriel whilst exercising parens patriae jurisdiction, in my view, the welfare of the minor child Gabriel will be best served by the Petitioner and that the Petitioner is required to be declared the true and lawful guardian of the minor child Gabriel.”

In the final judgment, the Court declared the petitioner as the true and lawful guardian of the child. The Court granted the respondents access to the child, allowing them to visit and take him for outings, with the condition that he be returned to the petitioner's residence on the same day. The parties were given the liberty to approach the court if any difficulties arose in implementing the order. No costs were awarded in the case.

Cause Title: Rita D’Souza v. Christopher Diago Zuzarte & Anr., [2023:BHC-OS:11816]

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