“It is a humane problem and is required to be solved with human touch,” observed a Bench headed by Justice C K Thakker.

The Bench, which also comprised Justice D K Jain, noted that in selecting a guardian, the court exercises parens patriae and is expected, and indeed bound to give due weight to a child’s comfort, contentment, health, education, intellectual development and favourable surroundings.

The Bench even asked courts to consider “moral and ethical values” which, it felt, “cannot be ignored” while deciding as to who should get the custody rights. According to the apex court, “they are equally, even more important, essential and indispensable considerations”.

The court made these observations while dealing with a petition filed by Nil Ratan Kundu and his wife, who opposed the granting of custody of their six-year-old grandson to be their son-in-law. They urged the court to take into account the “preference” of the child as well. “Normally, in custody cases, wishes of the minor child should be ascertained by the court before deciding as to whom custody should be given,” the court said while declining the father’s plea that he was the natural guardian.

Setting aside the trial court’s decision, upheld by the High Court of West Bengal, the Bench agreed that character of the proposed guardian was one of the issues required to be considered by a court of law. In the present case, the father, Abhijit Kundu, is facing a criminal trial for the murder of his wife, Mithi Kundu, over dowry demands.

Finding infirmities in the earlier decisions, the SC allowed the grandparents to be the guardians of the child.