MANU/SC/0160/2024

Equivalent/Neutral Citation: 2024(256)AIC 27, AIR2024SC 1299, 2024 (164) ALR 678, 2024(2)BLJ234, 2024 (1) C C C 146 , II(2024)DMC 1SC ,
2024(2)HLR123, 2024 INSC 163, 2024 165 RD442, 2024(1)RLW844(SC ), 2024(3)SC ALE375, (2024)7SC C 564, [2024]3SC R10, 2024(1)UC 625

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1345 of 2024 (Arising out of Special Leave Petition (Crl.) No. 7290
of 2023)
Decided On: 04.03.2024
Shazia Aman Khan and Ors. Vs. The State of Orissa and Ors.
Hon'ble Judges/Coram:
C.T. Ravikumar and Rajesh Bindal, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Amit Pawan, AOR, Abhishek Amritanshu, Anand
Nandan, Hassan Zubair Waris, Shivangi, Aakarsh and Suchit Singh Rawat, Advs.
For Respondents/Defendant: Shovan Mishra, AOR, Bipasa Tripathy, Adv., Hitendra Nath
Rath and Akshat Srivastava, AORs
Case Reversed/Partly Reversed:
Nesar Ahmed Khan vs. State of Orissa and Ors. MANU/OR/0698/2023
Case Note:
Family - Custody - Welfare of child - Child living since birth with Appellants
and Respondent No. 10 - Writ petition filed by Respondent No.2 before High
Court for custody of child - High Court directed Registrar (Judicial) of Court to
recover child from 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 - Hence, present appeal - Whether welfare of child lies with
her custody with Appellants and Respondent No. 10.
Facts:
The child living since birth with the Appellants and Respondent No. 10. A Writ
Petition was filed by Respondent No. 2, who was biological father of the child,
for restoration of her custody in his favour. 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.
Held, while allowing the appeal:
(i) This court found the child to be quite intelligent, who could understand
her welfare. She categorically stated that she was happy with the family
where she had been brought up. She had other brother and sister. She was
having cordial relations with them. She did not wish to be destabilized.[17]

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(ii) The fact that Appellant No. 1, when custody of the child was handed over
to her, was un-married and was now married having two children would 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 was living with
her ever since she was three-four months old and was now about fourteen
years of age having no doubt in her mind that she wishes to live with them.
[19]
(iii) The welfare of the child lies with her custody with the Appellants and
Respondent No. 10. This was coupled with the fact that even she also wishes
to live there. Keeping in view her age at present, she was capable of forming
an opinion in that regard. She was quite categoric in that regard when this
court interacted with her. She could not be treated as a chattel at the age of
fourteen years to hand over her custody to the Respondent No. 2, where she
had not lived ever since her birth. Stability of the child was also of paramount
consideration.[20]
JUDGMENT
Rajesh Bindal, J.
1. 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, 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

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Sections 363, 346, 120-B Indian Penal Code 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 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 judgment.
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 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

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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 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 Ors. MANU/SC/0014/2010 : 2010:INSC:7 : (2010) 2 SCC
654.
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 Indian Penal Code with reference to the
custody of the child. The aforesaid complaint is stated to be still pending. In a petition8
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 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 MANU/SC/0692/2019 : 2019:INSC:630 : AIR 2019 SC
2318 and Rohith Thammana Gowda v. State of Karnataka and Ors. MANU/SC/0938/2022
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: 2022:INSC:770 : AIR 2022 SC 3511. 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 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.
1 1 . This Court in Athar Hussain v. Syed Siraj Ahmed and ors.' 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,
MANU/SC/7671/2008 : 2008:INSC:636 : (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.
After taking note of the marked reluctance on the part of the boy to live with his
mother, the Court further observed:
2 6 . 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]
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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 Ganguli MANU/SC/7671/2008 :
2008:INSC:636 : (2008) 7 SCC 673, 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 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]
1 3 . In Nil Ratan Kundu and Anr. v. Abhijit Kundu MANU/SC/7935/2008 :
2008:INSC:920 : (2008) 9 SCC 413, 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, 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

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 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]
1 4 . 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 Anr. MANU/SC/1013/2010 : 2010:INSC:836 : (2010) 14 SCC 274, 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.
1 5 . This Court in Roxann Sharma v. Arun Sharma MANU/SC/0165/2015 :
2015:INSC:129 : (2015) 8 SCC 318, 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
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 ors.' 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

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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 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.

1 Order dated 03.04.2023

2 High Court of Orissa at Cuttack
3 WPCRL No. 160 of 2021
4 ICC Case No. 120 of 2017
5 CRLMC No. 549 of 2019
6 Criminal Writ Jurisdiction Case No. 1232 of 2017
7 Guardianship Case No. 23 of 2016 before the Court of Principal Judge, Family Court,
Patna
8 CRLMC No. 549 of 2019

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