In Child Custody Supreme Court Held That The Primary Consideration For The Custody Is "What Is In The Best Interest Of The Minor"

The case before the Hon,ble Supreme Court revolves around the delicate issue of determining custody for a minor child under parens patriae jurisdiction. In a compassionate ruling, the Court overturned the order of the High Court of Orissa, emphasizing the paramount importance of considering the best interests of the child in custody matters.

This appeal stems from an order issued by the High Court of Orissa at Cuttack on April 3rd, 2023, initiated by respondent No. 2, the biological father of Sumaiya Khanam, a 14-year-old twin. He sought the restoration of custody of Sumaiya Khanam, also known as Dania Aman Khan, in his favor.

The High Court directed the transfer of custody from appellant No. 2 and respondent No. 10 to respondent No. 2 (biological father), with instructions to the State Government authorities to execute the writ of Habeas Corpus accordingly.

Brief Facts of the Case:

Respondent No. 2 was blessed with twin daughters on 20.03.2010. At the time of the birth of the twins Respondent No. 2 (biological father) was living in Rourkela while the birth of the children took place in Ranchi where their maternal grandmother was residing. Due to the inability of Respondent No. 2 to take care of both twins at that time, it was decided that one of the twins would stay with their maternal grandmother.

Since the grandmother was not in a position to look after the child the infant (2-3 months old) was handed over to Appellant No. 2 (real sister of Respondent No. 1 i.e. Mother of the twins). The child lived under the care of Appellant No. 2 and no objection was raised until 2015 a complaint was lodged against the Appellants and Respondent No. 7 and 9 by Respondent No. 2 for kidnapping the child. Consequently, police had filed a closure report on 31.08.2016 which was not contested by Respondent No. 2 and the same was accepted by the Court vide order dated 11.02.2017.

Nevertheless, a private complaint was registered by Respondent No. 2 under the provisions of IPC, section 363, 346, 120-B concerning the custody of the child. Although the same is pending before the court the Appellants and Respondents No. 7 and 9 have moved to the High Court to seek quashing of the complaint consequently proceedings concerning the complaint have been stayed. Following the complaint lodged by Respondent No. 2 the wife of the Respondent (biological mother of the child in issue) filed a petition Criminal Writ Jurisdiction Case No. 1232 of 2017 before the Hon'ble Court of Judicature of Patna for issuance of direction to recover the child from the unjust internment of the private respondents. However, since no case could be curtailed thus the petition was dismissed as withdrawn with the liberty to secure appropriate legal remedy.

Respondent No. 2 later filed a private complaint concerning custody, leading to proceedings being stayed. Efforts to secure custody through various legal avenues ensued, including a petition in Patna. Eventually, respondent No. 2 filed a writ petition seeking custody, leading to the current proceedings.

The Hon'ble Supreme Court acknowledged the Islamic concept of Kafalah, as opposed to adoption, for custody arrangements.

In response, counsel for respondent No. 2 emphasized efforts to regain custody, attributing delays to external factors such as the COVID-19 pandemic. They argued for the child's well-being and proper care, asserting that appellant No. 1's marriage to respondent No. 10, a stranger to the family, could affect custody under Mohammedan law.

Lacing reliance on the case of Athar Hussain v. Syed Siraj Ahmed and others the counsel had pleaded that since the child is 14 years old now the best interest of the child must be taken into due consideration before reaching any statutorily regulated decision. In counter to the counsel for Appellant No. 1 and Respondent No. 10, the counsel for Respondent No. 2 had asserted that this is not a case of abandonment of child as is being tried to be projected by the counsel for the opposing party. Respondent No. 2 had made numerous efforts to procure the custody of the child but was unsuccessful in doing so. The counsel for respondent No. 2 explained the delay in filing the petition before the High Court, attributing it to the COVID-19 pandemic. Additionally, it was highlighted that since 2015, the biological parents of the child have been unable to meet her. Respondent No. 2 has been capable of meeting all the child's needs and providing her with the best education, similar to what is being provided to the child's twin sister. It was further argued that appellant No. 1 married respondent No. 10, who is a stranger to the family. According to Mohammedan law, custody of the child cannot be granted to a stranger beyond the prohibitory degree for marriage, although it was acknowledged that they all reside in a joint family.

Judgement:

The Supreme Court while allowing the appeal and setting aside the order of the High Court of Orissa has culminated the rule of the best interest of the child to be taken while adjudicating matters of custody. The Hon'ble Supreme Court has relied upon Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673 wherein the court has opined that the stability and security of the child is an essential ingredient for full development of the child's talent and personality. The 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

The Court had further placed reliance on Nil Ratan Kundu and another v. Abhijit Kundu (2008) 9 SCC 413 wherein the court has stated that this Court laid down the principles governing custody of minor children and held that the welfare of the children is to be seen and not the rights of the parties Relevant Paras of Nil Ratan Kundu and another v. Abhijit Kundu (2008) 9 SCC 413 are produced hereunder: "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"

While adjudicating the issue of the marital status of Appellant No. 2 the court has proclaimed that the circumstance that Appellant No. 1, who was unmarried when granted custody of the child, is now married, and has two children, should not prevent this Court from concluding that the best interests of the child still lie with appellant No. 2. The child has been residing with appellant No. 2 since she was around 3-4 months old and is now approximately 14 years old. The Supreme Court, guided by principles of child welfare, ruled in favor of appellant No. 2, underscoring the child's stability and attachment. The Court cited previous cases emphasizing the child's welfare as paramount and upheld appellant No. 2's custody, considering the child's long-standing residence (of about 14 years with her) and expressed preference.

Case: Shazia Aman Khan and Another V. The State of Orissa and Others.

Bench: C.T. Ravikumar and Rajesh Bindal

Date of Pronouncement: March 04, 2024