1. Dispute over custody of a minor child living with relatives since infancy — Petition for restoration of custody by biological father — Parens patriae jurisdiction. (Para 2 , 3 , 4 , 5 )
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2024 Supreme(SC) 182
SUPREME COURT OF INDIA
C.T. RAVIKUMAR, RAJESH BINDAL, JJ.
Shazia Aman Khan and Another – Appellants
Versus
The State of Orissa and Others – Respondents
Criminal Appeal No. 1345 of 2024, Arising Out of Special Leave Petition (Crl.) No. 7290 of 2023
Decided On : 04-03-2024
Advocates appeared:
For the Appellant(s) : Mr. Amit Pawan, AOR Mr. Abhishek Amritanshu, Adv. Mr. Anand Nandan, Adv. Mr. Hassan Zubair Waris, Adv. Ms. Shivangi, Adv. Mr. Aakarsh, Adv. Mr. Suchit Singh Rawat, Adv.
For the Respondent(s): Mr. Shovan Mishra, AOR Ms. Bipasa Tripathy, Adv. Mr. Hitendra Nath Rath, AOR Mr. Akshat Srivastava, AOR
For the Appellant(s) : Mr. Amit Pawan, AOR Mr. Abhishek Amritanshu, Adv. Mr. Anand Nandan, Adv. Mr. Hassan Zubair Waris, Adv. Ms. Shivangi, Adv. Mr. Aakarsh, Adv. Mr. Suchit Singh Rawat, Adv.
For the Respondent(s): Mr. Shovan Mishra, AOR Ms. Bipasa Tripathy, Adv. Mr. Hitendra Nath Rath, AOR Mr. Akshat Srivastava, AOR
IMPORTANT POINT
Custody of child – Welfare of child is focal point.
Headnote:
Guardianship and Wards Act, 1890 – Section 19 – Custody of girl child – Stability and security of child is an essential ingredient for full development of child’s talent and personality – Welfare of children is to be seen and not rights of parties – Welfare of child is of paramount consideration and not personal law and statute – Child is not a chattel or ball that it is bounced to and fro – Welfare of child is focal point – Child has categorically stated that she is happy with 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 – Impugned order passed by High Court set aside. (Paras 12, 13, 14, 15, 17 and 21)
Facts of the case:
This Court has been called upon to decide about issue regarding custody of a minor child in parens patriae jurisdiction. child at present is 14 years of age, living since birth with appellants and respondent No.10.
Findings of Court:
Impugned order passed by High Court is set aside, as a result of which writ petition filed by respondent No. 2 in High Court is dismissed.
Result : Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Biological father claims right to custody and child's identity — Current custodians argue child's welfare, stability, and the minor's expressed preference for remaining in current care. (Para 6 , 7 )
3. Court found the minor intelligent and capable of forming an opinion — Child expressed happiness and a desire to avoid destabilization from her long-term home. (Para 17 , 19 )
4. Welfare of the child is the paramount consideration, overriding personal law or statutes — Stability and the minor's intelligent preference are critical factors in determining custody. (Para 11 , 12 , 13 , 14 , 15 , 16 , 20 )
5. Appeal allowed — High Court order set aside — Custody of the minor child remains with the current custodians. (Para 21 )
6. What is the legal distinction between guardianship and custody in minor child disputes?
Guardianship refers to the legal right to be the natural guardian, which generally favors the father unless he is unfit. Custody is distinct and is determined by the welfare of the child, which may justify lawful custody with a relative or friend if it serves the child's best interests. (Para 11 )
7. Does personal law or statute prevail over the welfare of the child in custody matters?
No. The welfare and well-being of the child are the paramount considerations. Statutory provisions or personal laws cannot supersede what is conducive to the minor's welfare, as the court exercises parens patriae jurisdiction to ensure the child's best interests. (Para 13 , 14 , 15 )
8. To what extent is the wish or preference of the minor child considered in custody proceedings?
If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference. However, the final decision rests with the court based on what is most conducive to the overall welfare of the minor. (Para 13 , 16 , 17 , 20 )
9. How does the concept of stability influence the court's decision on child custody?
Stability and consistency in a child's routines and surroundings are essential for the full development of their talent and personality. Dislodging a child from a settled environment can cause emotional strain and is generally avoided if it contradicts the child's best interests. (Para 11 , 12 , 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 [Order dated 03.04.2023] passed by the High Court2 [High Court of Orissa at Cuttack] in a Writ Petition3 [WPCRL No. 160 of 2021] 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 complaint4 [ICC Case No. 120 of 2017] 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 [CRLMC NO. 549 of 2019] 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 [Criminal Writ Jurisdiction Case No. 1232 of 2017] 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 e
