2024 INSC 163 Page 1 of 19

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

(Arising out of Special Leave Petition (Crl.) No.7290 of 2023)

SHAZIA AMAN KHAN

AND ANOTHER … Appellant(s)

VERSUS

THE STATE OF ORISSA AND OTHERS … Respondent(s)

J U D G M E N T

Rajesh Bindal, J.

Leave granted.

2. This Court has been called upon to decide about the issue

regarding custody of a minor child in parens patriae jurisdiction.

3. The child at present is 14 years of age, living since birth with

the appellants and respondent No.10.

Page 2 of 19

4. Aggrieved against the order

1

passed by the High Court

2

in a

Writ Petition

3

filed by respondent No.2, who is biological father of the

child, for restoration of her custody, namely, Sumaiya Khanam in his

favour, the present appeal has been filed.

5. The High Court directed the Registrar (Judicial) of the Court to

recover the child from the custody of appellant No. 2 and respondent No.

10, particularly from appellant No. 1 and respondent No. 10 and to hand

over to respondent No.2. The authorities of the State Government were

also directed to execute the writ of Habeas Corpus and hand over the

child to respondent No. 2.

6. Learned counsel for the appellants submitted that twin

daughters were born to respondent No. 2 and his wife on 20.03.2010. The

respondent No. 2 at that time was living at Rourkela. The children were

born at Ranchi where their maternal grand mother was residing. As he

was unable to take care of twins, on his request, one was left at Ranchi.

Appellant No. 2 is the real sister of respondent No. 2. As the maternal

grand mother could not take care of the small child, she was handed over

1

Order dated 03.04.2023

2

High Court of Orissa at Cuttack

3

WPCRL No. 160 of 2021

Page 3 of 19

to the appellant No. 2. This happened when the child was merely 2-3

months old. Ever since then, she is living with her. No issue was raised by

respondent No. 2 at any time. It was only in the year 2015, a complaint was

filed by respondent No. 2 with the police regarding kidnapping of the

child against the appellants and respondents No. 7 and 9. As it was not a

case of kidnapping, as alleged, closure report was filed by the police on

31.08.2016, which was accepted by the Court, vide order dated

11.02.2017. No objection was raised by respondent No. 2 to the

acceptance of the closure report. However, a private complaint

4

dated

27.03.2017 was filed by respondent No. 2 under Sections 363, 346, 120-B

IPC with reference to the custody of the child by taking a different stand.

The aforesaid complaint is stated to be still pending. In a petition

5

filed by

the appellants and respondents No. 7 and 9 before the High Court seeking

quashing of the complaint, further proceedings in the complaint have

been stayed.

6.1 Immediately after filing of the aforesaid complaint by the

respondent No. 2, wife of respondent No.2, namely, biological mother of

4

ICC Case No. 120 of 2017

5

CRLMC NO. 549 of 2019

Page 4 of 19

the child, filed petition

6

in the High Court of Judicature at Patna praying

for issuance of directions to the official respondents to recover the child

from the wrongful confinement of the private respondents therein.

However, when no case could be made out, the aforesaid petition was

dismissed as withdrawn with liberty to avail remedy in accordance with

law. The fact remains that thereafter the mother of the child did not avail

any other remedy for seeking custody of the child. In fact, they were not

interested at all. It was the litigation only for the sake of it. The child was

left by respondent No. 2 with her maternal grand mother on account of

the financial difficulty faced by him at that time.

6.2 More than four years thereafter, respondent No. 2 filed a Writ

Petition in the High Court praying for custody of the child. While

entertaining the Writ Petition, the High Court, vide order dated

11.02.2022, noticed the issues need to be examined in the Writ Petition.

However, at the time of hearing the matter, the High Court framed

different issues, as have been noticed in paragraph No. 57 of the

impugned judgement.

6

Criminal Writ Jurisdiction Case No. 1232 of 2017

Page 5 of 19

6.3 He further submitted that number of documents were placed

by the appellants before the High Court which clearly establish that the

child ever since is living with the appellants and respondent No. 10. At

the time of her birth, her name was Sumaiya Khanam, which was later on

changed to Dania Aman Khan. A Petition

7

has been filed under the

Guardianship and Wards Act, 1890 by appellant No.1 and respondent

No.10, which is stated to be pending. However, he submitted that in the

present proceedings, the appellants are only raising the issue regarding

custody of the child and not guardianship. He fairly submitted that there

is no system of adoption of child in Mohammaden law. It is only Kafalah,

in terms of which only custody can be given to another person, however,

the child does not sever relations with biological parents.

6.4 Learned counsel for the appellants on instructions

categorically stated that appellant No. 1 and respondent No. 10 have two

more children. The child, of which they have the custody ever since her

birth will have equal rights along with two other children. She will not be

discriminated in any manner whatsoever.

7

Guardianship Case No. 23 of 2016 before the Court of Principal Judge, Family Court, Patna

Page 6 of 19

6.5 Further raising the issue regarding the conduct of respondent

No. 2, he submitted that firstly a petition for Habeas Corpus was filed by

the wife of respondent No. 2 before the High Court of Judicature at Patna

five years after the child had been living with appellant No. 1 and

respondent No. 10. The same was dismissed as withdrawn. Four years

thereafter, similar petition was filed by respondent No. 2 before the High

Court of Orissa. Time gap shows that the respondent No. 2 is not

interested in custody of the child.

6.6 He further submitted that to show their bonafide, appellant No.

1 and respondent No. 10 are ready and willing to deposit a sum of

₹10,00,000/- in FDR in bank in her name and also transfer property having

market value of about ₹50,00,000/-. At present, the child is grown up. She

is 14 years of age. She is capable of forming an opinion about her best

interest. The welfare of the child is of paramount consideration and not

the rights of the parties. Stability is most important factor as any order

passed by this Court may dislodge the child from the family where she is

settled for the last 14 years. Her transplantation at this stage may not be

in her best interest. It is the welfare of the child and not the personal law

or the statute which has paramount consideration, when the parties are

Page 7 of 19

fighting. In support of his argument that it is only the best interest of the

child which is to be considered in such matters and also the difference

between custody and guardianship, reliance was placed upon the

judgment of this Court in Athar Hussain v. Syed Siraj Ahmed and

others

8

.

7. In response, learned counsel for respondent No. 2 submitted

that it is not the case of abandonment of a child, as is sought to be

projected by the appellants now. No parents will ever think of that, what

to talk of actually doing it. The child was left with her maternal grand

mother and thereafter handed over to appellant No.2 for her initial

upbringing when she was 3-4 months old. She further submitted that when

repeated requests for returning back the child were not acceded to,

respondent No. 2 did not have any choice but to lodge an FIR in which a

closure report was filed and accepted also. She further submitted that

even during this period of five years, the child had been coming to her

parents off and on. It was further submitted that after the closure report in

the aforesaid FIR was accepted, respondent No. 2 filed a complaint dated

27.03.2017 under Sections 363, 346, 120-B IPC with reference to the

8

(2010) 2 SCC 654

Page 8 of 19

custody of the child. The aforesaid complaint is stated to be still pending.

In a petition

9

filed by the appellants and respondents No. 7 and 9 seeking

quashing of the complaint, further proceedings in the complaint have

been stayed by the High Court of Orissa. Immediately after filing of the

aforesaid complaint by respondent No. 2, his wife, i.e., biological mother

of the child, filed the petition in the High Court of Judicature at Patna

praying for issuance of directions to the official respondents to recover

the child from the wrongful confinement of the private respondents

therein. The aforesaid petition was dismissed as withdrawn with liberty to

avail any other remedy in accordance with law.

7.1 Explaining the delay in filing the petition before the High

Court, learned counsel for respondent No. 2 submitted that it is was

because of COVID pandemic. She further submitted that since 2015, the

biological parents of the child have not even been able to meet her.

Respondent No. 2 was and is able to take care of all the needs of the child

and provide her best education, as is being provided to the sister of the

child as twins were born. It was further argued that appellant No. 1 got

married with respondent No. 10, who is a stranger to the family. In terms

9

CRLMC NO. 549 of 2019

Page 9 of 19

of Mohammedan law, custody of the child cannot be given to the stranger,

who is beyond prohibitory degree for marriage but she fairly submitted

that they all are living in a joint family.

7.2 It was further argued that one of the prayers made by the

appellants before this Court is that appellant No. 2 be permitted to stay

for some time with the child in case custody is handed over to respondent

No. 2 so that the child settles in new atmosphere. Respondent No. 2 does

not have any objection to the fair offer made by the appellants. In fact,

when the child was handed over to appellant No.1, she was un-married.

However, thereafter she got married and is having two children. The child

may be discriminated. If the custody of the child is handed over to

respondent No. 2, the distance between Patna and Rourkela being not

much, the appellants are always welcome to visit the child. The question

is also of the identity of the child which has been lost in the process. If she

comes back, she will also have love, affection and company of her twin

sister. In support, reliance was placed upon Tejaswani Gaud v. Shekhar

Jagdish Prasad Tewari

10

and Rohith Thammana Gowda v. State of

Karnataka and others

11

. The Prayer is for dismissal of the appeal.

10

AIR 2019 SC 2318

11

AIR 2022 SC 3511

Page 10 of 19

8. Heard learned counsel for the parties and perused the

relevant referred record.

9. The undisputed facts on record are that twins were born to

respondent No. 2 and his wife on 20.03.2010. One of them, the custody of

whom is in question, has undisputedly been living with appellant No. 2

ever since she was 3-4 month old and thereafter with the family.

Presently, she is about 14 years of age. It is not a case in which any of the

parties is claiming adoption which otherwise is not permissible under

Mohammedan law. Guardianship is also not being claimed. It is only the

dispute regarding custody of the child.

10. Before we deal with the issue on merits, we deem it

appropriate to refer to the legal position on the issues.

11. This Court in Athar Hussain v. Syed Siraj Ahmed and

others’case (supra) had elaborated the concept of custody ,

guardianship and stability of child, while holding as under:

“31. We are mindful of the fact that, as far as the

matter of guardianship is concerned, the prima facie case

lies in favour of the father as under Section 19 of the GWC

Act, unless the father is not fit to be a guardian, the Court

Page 11 of 19

has no jurisdiction to appoint another guardian. It is also

true that the respondents, despite the voluminous

allegations leveled against the appellant have not been

able to prove that he is not fit to take care of the minor

children, nor has the Family Court or the High Court found

him so. However, the question of custody is different from

the question of guardianship. Father can continue to be

the natural guardian of the children; however, the

considerations pertaining to the welfare of the child may

indicate lawful custody with another friend or relative as

serving his/her interest better.

xx xx xx

37. Stability and consistency in the affairs and

routines of children is also an important consideration as

was held by this Court in another decision cited by the

learned counsel for the appellant in Mausami Moitra

Ganguli v. Jayant Ganguli, (2008)7 SCC 673. This Court

held:

“24…..We are convinced that the dislocation of

Satyajeet, at this stage, from Allahabad, where he

has grown up in sufficiently good surroundings,

would not only impede his schooling, it may also

cause emotional strain and depression to him.”

Page 12 of 19

After taking note of the marked reluctance on the part of

the boy to live with his mother, the Court further

observed:

"26. Under these circumstances and

bearing in mind the paramount consideration of

the welfare of the child, we are convinced that

child's interest and welfare will be best served if

he continues to be in the custody of the father. In

our opinion, for the present, it is not desirable to

disturb the custody of Master Satyajeet and,

therefore, the order of the High Court giving his

exclusive custody to the father with visitation

rights to the mother deserves to be maintained."

[Emphasis supplied]

xx xx xx

41. However, the High Court of Rajasthan held

that in the light of Section 19 which bars the Court from

appointing a guardian when the father of the minor is alive

and not unfit, the Court could not appoint any maternal

relative as a guardian, even though the personal law of the

minor might give preferential custody in her favour. As is

evident, the aforementioned decision concerned

appointment of a guardian. No doubt, unless the father is

proven to be unfit, the application for guardianship filed

Page 13 of 19

by another person cannot be entertained. However, we

have already seen that the question of custody was distinct

from that of guardianship. As far as matters of custody are

concerned, the Court is not bound by the bar envisaged

under Section 19 of the Act.”

[Emphasis supplied]

12. This Court in Mausami Moitra Ganguli v. Jayant Ganguli

12

,

opined that the stability and security of the child is an essential ingredient

for full development of child’s talent and personality. Relevant paragraph

thereof is extracted below:

“23. Having bestowed our anxious consideration

to the material on record and the observations made by

the courts below, we are of the view that in the present

case there is no ground to upset the judgment and order

of the High Court. There is nothing on record to suggest

that the welfare of the child is in any way in peril in the

hands of the father. In our opinion, the stability and

security of the child is also an essential ingredient for a full

development of child's talent and personality. As noted

above, the appellant is a teacher, now employed in a

school at Panipat, where she had shifted from Chandigarh

some time back. Earlier she was teaching in some school

12

(2008) 7 SCC 673

Page 14 of 19

at Calcutta. Admittedly, she is living all alone. Except for

a very short duration when he was with the appellant,

Master Satyajeet has been living and studying in

Allahabad in a good school and stated to have his small

group of friends there. At Panipat, it would be an entirely

new environment for him as compared to Allahabad.

[Emphasis supplied]

13. In Nil Ratan Kundu and another v. Abhijit Kundu

13

, this

Court laid down the principles governing custody of minor children and

held that welfare of the children is to be seen and not the rights of the

parties by observing as under:

“Principles governing custody of minor children

53. In our judgment, the law relating to custody

of a child is fairly well-settled and it is this. In deciding a

difficult and complex question as to custody of minor, a

Court of law should keep in mind relevant statutes and the

rights flowing therefrom. But such cases cannot be

decided solely by interpreting legal provisions. It is a

humane problem and is required to be solved with human

touch. A Court while dealing with custody cases, is neither

bound by statutes nor by strict rules of evidence or

13

(2008) 9 SCC 413

Page 15 of 19

procedure nor by precedents. In selecting proper

guardian of a minor, the paramount consideration should

be the welfare and well-being of the child. In selecting a

guardian, the Court is exercising parens patriae

jurisdiction and is expected, nay bound, to give due

weight to a child's ordinary comfort, contentment, health,

education, intellectual development and favourable

surroundings. But over and above physical comforts,

moral and ethical values cannot be ignored. They are

equally, or we may say, even more important, essential

and indispensable considerations. 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.

xx xx xx

55. We are unable to appreciate the approach of

the Courts below. This Court in catena of decisions has

held that the controlling consideration governing the

custody of children is the welfare of children and not the

right of their parents.”

[Emphasis supplied]

Page 16 of 19

14. This Court has consistently held that welfare of the child is of

paramount consideration and not personal law and statute. In Ashish

Ranjan v. Anupam Tandon and another

14

, this Court held as under:

“19. The statutory provisions dealing with the

custody of the child under any personal law cannot and

must not supersede the paramount consideration as to

what is conducive to the welfare of the minor. In fact, no

statute on the subject, can ignore, eschew or obliterate

the vital factor of the welfare of the minor.

15. This Court in Roxann Sharma v. Arun Sharma

15

, opined that

the child is not a chattel or ball that it is bounced to and fro. Welfare of the

child is the focal point. Relevant lines from para-No. 18 are reproduced

hereunder:

“18………There can be no cavil that when a court is

confronted by conflicting claims of custody there are no

rights of the parents which have to be enforced; the child

is not a chattel or a ball that is bounced to and fro the

parents. It is only the child’s welfare which is the focal

point for consideration. Parliament rightly thinks that the

custody of a child less than five years of age should

14

(2010) 14 SCC 274

15

(2015) 8 SCC 318

Page 17 of 19

ordinarily be with the Mother and this expectation can be

deviated from only for strong reasons…..”

16. Another principle of law which is settled with reference to

custody of the child is the wish of the child, if she is capable of. Reference

can be made to Rohith Thammana Gowda v. State of Karnataka and

others’ case (supra). It was held as under:

“13. We have stated earlier that the question ‘what

is the wish/desire of the child’ can be ascertained through

interaction, but then, the question as to ‘what would be the

best interest of the child’ is a matter to be decided by the

court taking into account all the relevant circumstances. A

careful scrutiny of the impugned judgment would,

however, reveal that even after identifying the said

question rightly the High Court had swayed away from the

said point and entered into consideration of certain

aspects not relevant for the said purpose. We will explain

the raison d’etre for the said remark.”

17. In the case in hand, vide order dated 12.12.2023, we had called

the child in Court. We had interacted with the child, the appellants and

respondent No. 2 individually in chamber. We found the child to be quite

intelligent, who could understand her welfare. She categorically stated

that she is happy with the family where she has been brought up. She has

Page 18 of 19

other brother and sister. She is having cordial relations with them. She

does not wish to be destabilized.

18. The judgment in Tejaswani Gaud v. Shekhar Jagdish

Prasad Tewari’s case (supra), relied upon by learned counsel for

respondent No. 2 does not come to her rescue for the reason that age of

the child in that case was merely five years. It is a case which lays down

guidelines as to how custody of the child is to be handed over.

19. The fact that appellant No. 1, when custody of the child was

handed over to her, was un-married and is now married having two

children will also not be a deterrent for this Court to come to the

conclusion that best interest of the child still remains with the appellant

No. 2 as the child is living with her ever since she was 3-4 months old and

is now about 14 years of age having no doubt in her mind that she wishes

to live with them.

20. In view of our aforesaid discussions, we find that the welfare

of the child lies with her custody with the appellants and respondent No.

10. This is coupled with the fact that even she also wishes to live there.

Keeping in view her age at present, she is capable of forming an opinion

in that regard. She was quite categoric in that regard when we interacted

Page 19 of 19

with her. She cannot be treated as a chattel at the age of 14 years to hand

over her custody to the respondent No.2, where she has not lived ever

since her birth. Stability of the child is also of paramount consideration.

21. The appeal is accordingly allowed. The impugned order

passed by the High Court is set aside, as a result of which the writ petition

filed by respondent No. 2 in the High Court is dismissed. We expect the

appellants to adhere to the stand taken by them during the course of

arguments, as noticed above.

……………….……………..J.

(C.T. RAVIKUMAR)

……………….……………..J.

(RAJESH BINDAL)

New Delhi

March 04, 2024.