Facts
3) The child at present is 14 years of age, living since birth with the appellants and respondent No.10.
4) Aggrieved against the order passed by the High Court in a Writ Petition 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.
Appellants side submission
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 grandmother 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 grandmother 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 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 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 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.
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. A the time of her birth, her name was Sumaiya Khanam, which was later on changed to Dania Aman Khan. A Petition 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 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.
Respondents side submission
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.
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) 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.
Observation from precedents
11) This Court in Athar Hussain v. Syed Siraj Ahmed and others’case 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”
13) In Nil Ratan Kundu and another v. Abhijit Kundu, 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 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”.
Best interest of the child
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.
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.
Conclusion
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
Party
Shazia Aman Khan And Another … Appellant(S) -Vs- The State Of Orissa And Others … Respondent(S),Dated On 4th March – Criminal Appeal No. Of 2024 (Arising Out Of Special Leave Petition (Crl.) No.7290 Of 2023)
https://main.sci.gov.in/supremecourt/2023/23396/23396_2023_13_1501_51045_Judgement_04-Mar-2024.pdf
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