In the High Court at Calcutta Civil Appellate Jurisdiction Appellate Side The Hon’ble Justice Sabyasachi Bhattacharyya And The Hon’ble Justice Uday Kumar F.M.A. No.195 of 2025 With CAN 1 of 2024 CAN 2 of 2024 Sony Bagchi Vs.

Farida Bibi For the appellant : Mr. Kushal Chatterjee, Mr. Oishik Chatterjee For the respondent : Mr. Partha Pratim Roy, Mr. Anirban Das, Mr. Debrup Choudhury Heard on : 04.03.2025 Hearing concluded on : 26.03.2025 Judgment on : 02.04.2025 Sabyasachi Bhattacharyya, J.:-

1. The facts of the case are rather poignant. The appellant was returning from work when she found a lady on the streets, writhing in pain and her amniotic fluid flowing from her body. Coming closer, the appellant found that the lady was mentally deranged. The appellant immediately took the lady to the nearby Narayanpur Police Station but the police allegedly refused to take any step. Finally, the appellant took the lady to the R.G. Kar Medical College and Hospital and on the self-same date, that is, on August 28, 2021, twin male babies were born to the lady. The mother and brother of the lady visited her in the hospital but allegedly expressed their poor financial condition and resulting inability to take care of the newborns.

2. The appellant raised the said two minor boys and named them. The boys are now aged about three and a half years and are studying in an English medium school by the name of Rathtala Park Side School.

3. The mother of the two children has subsequently gone missing and has not yet been traced out.

4. In the above backdrop, the appellant applied for guardianship and custody of the two minors under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 (for short, “the 1890 Act”). By the impugned judgment and order dated August 30, 2024, the learned Additional District & Sessions Judge, Second Court at Barrackpore, District – North 24 Parganas dismissed the said application, bearing Miscellaneous Case No.181 of 2024, on the ground that the application under the 1890 Act was not maintainable since the children come within the definition of “abandoned child” under Section 2(14), Clauses (v) and (vi) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as “the JJ Act”). The children were directed to be handed over to the Child Welfare Committee (CWC), North 24 Parganas. Being thus aggrieved, the present appeal has been preferred.

5. The mother of the lady, that is, the maternal grandmother of the two minors, namely Ohila Bibi, has sworn affidavits both before this court and the court of first instance to the effect that considering her poor financial condition, she has no objection if the custody and guardianship of the children be handed over to the appellant.

6. The said maternal grandmother Ohila Bibi is represented through counsel before us and supports the contentions of the appellant. Written notes of arguments have also been filed by the appellant, supported by the said Ohila Bibi.

7. The appellant argues that both the minors are Muslims and in view of their mother being mentally unsound and having gone missing, in her absence, as per the governing Mohammedan Law, their maternal grandmother, namely Ohila Bibi, is entitled to their custody. Learned counsel submits that in terms of the Mohammedan personal law, custody (Hizanat) of minors, in case they do not have any parent, vests with the female relatives, among whom the first preference is the mother‟s mother, who becomes a de facto guardian having custody of the minors.

8. Learned counsel relies on the concept of Kafalah, based on alternative family care options for children outside parental care. Learned counsel places reliance on an “Introduction to Kafalah”, issued by the UNICEF, as per which, Kafalah is a commitment by an individual or a family (Kafil) to voluntarily take responsibility for the daily care, education, safety and the protection of children (Makful) deprived of family care, in the same way a parent would do f