* Author
[2024] 3 S.C.R. 10 : 2024 INSC 163
Shazia Aman Khan and Another
v.
The State of Orissa and Others
(Criminal Appeal No.1345 of 2024)
04 March 2024
[C.T. Ravikumar and Rajesh Bindal,* JJ.]
Issue for Consideration
Custody of a minor child in parens patriae jurisdiction.
Headnotes
Child and Family Welfare – Custody of minor child – Custody
of one of the twin daughters born to respondent No.2 and his
wife is in question, who had undisputedly been living with
appellant No.2 (real sister of respondent No. 2) ever since she
was 3-4 month old and thereafter with the family:
Held: Stability and security of the child is an essential ingredient
for full development of child’s talent and personality – Welfare of
the children is of paramount consideration and not personal law
and statute – Child’s welfare is to be seen and not the rights of the
parties – 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 – Presently, the child is about 14 years of age – She was called
in Court and interacted with individually in chamber – She is quite
intelligent and could understand her welfare – She categorically
stated that she was happy with the family where she had been
brought up – She has other brother and sister and is having cordial
relations with them and she does not wish to be destabilized – The
fact that appellant No.1 was un-married when custody of the child
was handed over to her 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 – 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 – 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
[2024] 3 S.C.R. 11
Shazia Aman Khan and Another v. The State of Orissa and Others
ever since her birth – Stability of the child is also of paramount
consideration – Impugned order passed by the High Court inter
alia directing the recovery of 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 is set
aside – Writ petition filed by respondent No. 2 in the High Court
dismissed. [Paras 12-14, 16, 17, 19-21]
Case Law Cited
Tejaswani Gaud v. Shekhar Jagdish Prasad Tewari,
[2019] 7 SCR 335 : AIR 2019 SC 2318 – held
inapplicable.
Athar Hussain v. Syed Siraj Ahmed and others, [2010] 1
SCR 49 : (2010) 2 SCC 654; Rohith Thammana Gowda
v. State of Karnataka and others, [2022] 4 SCR 784 :
AIR 2022 SC 3511; Mausami Moitra Ganguli v. Jayant
Ganguli, [2008] 8 SCR 260 : (2008) 7 SCC 673; Nil
Ratan Kundu and another v. Abhijit Kundu, [2008] 11
SCR 1111 : (2008) 9 SCC 413; Ashish Ranjan v. Anupam
Tandon and another, [2010] 14 SCR 961 : (2010) 14
SCC 274; Roxann Sharma v. Arun Sharma, [2015] 2
SCR 572 : (2015) 8 SCC 318 – relied on.
List of Keywords
Custody of minor child; Parens patriae jurisdiction; Stability and
security of the child; Welfare of the child; Wish of the child;
Mohammaden law.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1345
of 2024
From the Judgment and Order dated 03.04.2023 of the High Court
of Orissa at Cuttack in WPCRL No.160 of 2021
Appearances for Parties
Amit Pawan, Anand Nandan, Abhishek Amritanshu, Aakarsh, Hassan
Zubar Waris, S.S. Rawat, Ms. Shivangi, Advs. for the Appellants.
Shovan Mishra, Ms. Bipasa Tripathy, Ms. Sagarika Sahoo, Anam
Charan Panda, Hitendra Nath Rath, Akshat Srivastava, Advs. for
the Respondents.
12 [2024] 3 S.C.R.
Digital Supreme Court Reports
Judgment / Order of the Supreme Court
Judgment
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.
4. Aggrieved against the order1 passed by the High Court2
in a Writ
Petition3
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 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,
1 Order dated 03.04.2023
2 High Court of Orissa at Cuttack
3 WPCRLNo. 160 of 2021
[2024] 3 S.C.R. 13
Shazia Aman Khan and Another v. The State of Orissa and Others
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 complaint4
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 petition5
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 the child, filed petition6
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.
6.3 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
4 ICC CaseNo.120 of2017
5 CRLMC NO. 549 of2019
6 Criminal Writ Jurisdiction Case No. 1232 of 2017
14 [2024] 3 S.C.R.
Digital Supreme Court Reports
No. 10. At the time of her birth, her name was Sumaiya Khanam,
which was later on changed to Dania Aman Khan. A Petition7
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.
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
7 Guardianship Case No. 23 of 2016 before the Court of Principal Judge, Family Court, Patna
[2024] 3 S.C.R. 15
Shazia Aman Khan and Another v. The State of Orissa and Others
of the child and not the personal law or the statute which has
paramount consideration, when the parties are 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 others8
.
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 custody of the child. The aforesaid complaint is stated to be
still pending. In a petition9
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
8 (2010) 2 SCC 654
9 CRLMC N0. 549 of 2019
16 [2024] 3 S.C.R.
Digital Supreme Court Reports
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
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 Tewari10 and Rohith Thammana Gowda v.
State of Karnataka and others11. The Prayer is for dismissal
of the appeal.
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
10 [2019] 7 SCR 335 : AIR 2019 SC 2318
11 [2022] 4 SCR 784 : AIR 2022 SC 3511
[2024] 3 S.C.R. 17
Shazia Aman Khan and Another v. The State of Orissa and Others
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 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.”
18 [2024] 3 S.C.R.
Digital Supreme Court Reports
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 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 Ganguli12, 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
12 [2008] 8 SCR 260 : (2008) 7 SCC 673
[2024] 3 S.C.R. 19
Shazia Aman Khan and Another v. The State of Orissa and Others
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 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 Kundu13, 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 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,
13 [2008] 11 SCR 1111 : (2008) 9 SCC 413
20 [2024] 3 S.C.R.
Digital Supreme Court Reports
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]
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 another14, 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 Sharma15, 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
14 [2010] 14 SCR 961 : (2010) 14 SCC 274
15 [2015] 2 SCR 572 : (2015) 8 SCC 318
[2024] 3 S.C.R. 21
Shazia Aman Khan and Another v. The State of Orissa and Others
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 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 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
22 [2024] 3 S.C.R.
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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 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.
Headnotes prepared by: Divya Pandey Result of the Case:
Appeal allowed.
