Supreme Court settles child custody in parens patriae jurisdiction: Shazia Aman Khan vs. State of Orissa (2024)

Introduction

Date of the Judgment: March 04, 2024

Citation: 2024 INSC 163

Judges: C.T. Ravikumar, J. and Rajesh Bindal, J.

What happens when a child has been living with a family other than her biological parents for almost her entire life? The Supreme Court of India recently addressed this complex issue in a case concerning the custody of a 14-year-old girl. The core question was whether the child should be returned to her biological father or remain with the family that has raised her since she was a few months old. The judgment was delivered by a two-judge bench comprising Justice C.T. Ravikumar and Justice Rajesh Bindal, with the opinion authored by Justice Rajesh Bindal.

Case Background

The case revolves around a custody dispute concerning a minor girl, Sumaiya Khanam (later named Dania Aman Khan), who was born on March 20, 2010. The biological parents of the child are respondent No. 2 and his wife. Due to circumstances, the child was left with her maternal grandmother shortly after birth. When the maternal grandmother could not care for her, the child was handed over to appellant No. 2, the real sister of respondent No. 2, when she was just 2-3 months old. Since then, the child has been living with the appellants (appellant No. 1 and appellant No. 2) and respondent No. 10.

In 2015, respondent No. 2 filed a complaint with the police alleging kidnapping of the child against the appellants and respondents No. 7 and 9. However, the police filed a closure report on August 31, 2016, which was accepted by the Court on February 11, 2017. Despite this, respondent No. 2 filed a private complaint on March 27, 2017, under Sections 363, 346, and 120-B of the Indian Penal Code, 1860 (IPC) regarding the child’s custody. This complaint is still pending, and further proceedings have been stayed by the High Court.

Following the private complaint, the biological mother of the child filed a petition in the High Court of Judicature at Patna seeking the child’s recovery from wrongful confinement. This petition was later withdrawn with liberty to avail other remedies, but no further action was taken by her. Four years later, respondent No. 2 filed a Writ Petition in the High Court of Orissa seeking custody of the child, which led to the current appeal before the Supreme Court.

Timeline:

Course of Proceedings

The High Court of Orissa, in response to the Writ Petition filed by respondent No. 2, directed the Registrar (Judicial) to recover the child from the custody of appellant No. 2 and respondent No. 10 and hand her over to respondent No. 2. The High Court also directed the State Government authorities to execute the writ of Habeas Corpus to ensure the child was handed over to respondent No. 2. This order of the High Court was challenged by the appellants in the Supreme Court, leading to the present appeal.

Legal Framework

The Supreme Court addressed the issue of child custody under its parens patriae jurisdiction. This legal doctrine allows the court to act as the ultimate guardian of a child when the child’s welfare is at stake. The court emphasized that in such cases, the paramount consideration is the welfare of the child, not the rights of the parents. The Court also discussed the distinction between custody and guardianship, noting that while a father may be the natural guardian, custody can be granted to another person if it serves the child’s best interests.

The Court referred to Section 19 of the Guardians and Wards Act, 1890, which states that the Court has no jurisdiction to appoint another guardian if the father is alive and fit to be the guardian. However, the Court clarified that this provision does not apply to the issue of custody, where the child’s welfare is the primary concern.

Arguments

Arguments by the Appellants:

• The appellants argued that the child has been living with them since she was 2-3 months old and is now 14 years old. She has been raised in a stable and loving environment.
• They contended that respondent No. 2 did not show interest in the child’s custody for many years, filing the writ petition only after a significant delay.
• The appellants emphasized that the child’s name was changed to Dania Aman Khan and she is well-integrated into their family.
• The appellants highlighted that the child has two siblings in their family and will have equal rights with them and will not be discriminated against in any manner.
• They argued that the child’s stability is of paramount importance and that displacing her at this stage would be detrimental to her welfare.
• The appellants offered to deposit ₹10,00,000 in a fixed deposit in her name and transfer property worth ₹50,00,000 to her.
• They relied on the judgment of the Supreme Court in Athar Hussain v. Syed Siraj Ahmed and others [(2010) 2 SCC 654] to support their argument that the best interest of the child should be the primary consideration.

Arguments by Respondent No. 2:

• Respondent No. 2 argued that it was not a case of abandonment of the child, but rather a temporary arrangement due to financial difficulties.
• He stated that he had made repeated requests for the child’s return, which were not heeded, leading to the filing of a police complaint.
• He argued that the child was not allowed to meet her biological parents since 2015.
• Respondent No. 2 asserted that he is capable of providing for the child’s needs, including her education.
• He contended that appellant No. 1 married a stranger to the family, and under Mohammedan law, custody cannot be given to a stranger.
• He argued that the child has lost her identity and should be with her biological family, where she can have the love and company of her twin sister.
• Respondent No. 2 relied on the judgments in Tejaswani Gaud v. Shekhar Jagdish Prasad Tewari [AIR 2019 SC 2318] and Rohith Thammana Gowda v. State of Karnataka and others [AIR 2022 SC 3511].

[TABLE] of Submissions:

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was:

1. Whether the custody of the minor child, Dania Aman Khan, should be with the appellants or respondent No. 2, considering the welfare of the child as the paramount consideration.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

• Athar Hussain v. Syed Siraj Ahmed and others [(2010) 2 SCC 654] – Supreme Court of India
  • This case was used to emphasize that while the father is the natural guardian, custody can be given to another person if it serves the child’s best interest. The Court highlighted the distinction between custody and guardianship.
• Mausami Moitra Ganguli v. Jayant Ganguli [(2008) 7 SCC 673] – Supreme Court of India
  • This case was cited to highlight the importance of stability and security in a child’s life for their overall development.
• Nil Ratan Kundu and another v. Abhijit Kundu [(2008) 9 SCC 413] – Supreme Court of India
  • This case was used to emphasize that the welfare of the child is paramount and not the rights of the parents. The Court also noted that it is not bound by strict rules of evidence or procedure in custody cases.
• Ashish Ranjan v. Anupam Tandon and another [(2010) 14 SCC 274] – Supreme Court of India
  • This case was used to emphasize that statutory provisions on child custody cannot supersede the paramount consideration of the child’s welfare.
• Roxann Sharma v. Arun Sharma [(2015) 8 SCC 318] – Supreme Court of India
  • This case was used to highlight that a child is not a chattel and the child’s welfare is the focal point in custody disputes.
• Rohith Thammana Gowda v. State of Karnataka and others [AIR 2022 SC 3511] – Supreme Court of India
  • This case was used to emphasize that the wish of the child, if she is capable of, is also an important consideration.
• Tejaswani Gaud v. Shekhar Jagdish Prasad Tewari [AIR 2019 SC 2318] – Supreme Court of India
  • This case was distinguished by the Court. The Court noted that the child in that case was only five years old, and it laid down guidelines as to how the custody of the child is to be handed over.

Legal Provisions:

• Section 19 of the Guardians and Wards Act, 1890
  • This provision states that the Court has no jurisdiction to appoint another guardian if the father is alive and fit to be the guardian. However, the Court clarified that this provision does not apply to the issue of custody, where the child’s welfare is the primary concern.

[TABLE] of Authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court followed Athar Hussain v. Syed Siraj Ahmed and others [(2010) 2 SCC 654]* to emphasize the distinction between custody and guardianship, and that the welfare of the child is paramount.
• The Supreme Court followed Mausami Moitra Ganguli v. Jayant Ganguli [(2008) 7 SCC 673]* to highlight the importance of stability and security in a child’s life.
• The Supreme Court followed Nil Ratan Kundu and another v. Abhijit Kundu [(2008) 9 SCC 413]* to emphasize that the welfare of the child is paramount and not the rights of the parents.
• The Supreme Court followed Ashish Ranjan v. Anupam Tandon and another [(2010) 14 SCC 274]* to emphasize that statutory provisions on child custody cannot supersede the paramount consideration of the child’s welfare.
• The Supreme Court followed Roxann Sharma v. Arun Sharma [(2015) 8 SCC 318]* to highlight that a child is not a chattel and the child’s welfare is the focal point in custody disputes.
• The Supreme Court followed Rohith Thammana Gowda v. State of Karnataka and others [AIR 2022 SC 3511]* to emphasize that the wish of the child, if she is capable of, is also an important consideration.
• The Supreme Court distinguished Tejaswani Gaud v. Shekhar Jagdish Prasad Tewari [AIR 2019 SC 2318]*, noting that the child in that case was only five years old and the case laid down guidelines as to how custody of the child is to be handed over.
• The Supreme Court explained that while Section 19 of the Guardians and Wards Act, 1890 bars the court from appointing another guardian if the father is fit, it does not apply to custody matters where the child’s welfare is paramount.

The Supreme Court concluded that the welfare of the child lies with her custody with the appellants and respondent No. 10. This decision was based on the fact that the child has been living with them since she was 3-4 months old and is now about 14 years old. The Court also considered the child’s wishes, as she clearly stated that she is happy with her current family and does not wish to be destabilized. The Court emphasized that a child of 14 years cannot be treated as a chattel and handed over to someone she has not lived with since birth. The stability of the child was also a paramount consideration for the court.

The Court stated, “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.”

The Court also stated, “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.”

The Court further observed, “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.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Child’s Stability and Continuity: The Court placed significant emphasis on the fact that the child has been living with the appellants since she was 3-4 months old. The Court recognized that disrupting this long-term stability could be detrimental to the child’s emotional and psychological well-being.
• Child’s Expressed Wishes: The Court interacted with the child and found her to be intelligent and capable of understanding her own welfare. Her clear and unequivocal statement that she is happy with her current family and does not wish to be destabilized was a crucial factor in the Court’s decision.
• Long-Term Care and Environment: The Court noted that the child has been raised in a loving and caring environment with the appellants, where she has developed strong bonds with her siblings.
• Lack of Interest by Biological Father: The Court took note of the delay and lack of consistent interest shown by respondent No. 2 in seeking custody of the child, which further supported the decision to maintain the status quo.
• Paramountcy of Child’s Welfare: The Court reiterated that the welfare of the child is the paramount consideration in custody disputes, and this principle outweighed other factors, including the rights of the biological parents and personal laws.

[TABLE] of Sentiment Analysis:

Fact:Law Ratio:

Logical Reasoning:

Key Takeaways

• The welfare of the child is the paramount consideration in custody disputes, overriding parental rights and personal laws.
• Stability and continuity in a child’s life are crucial for their emotional and psychological well-being.
• The wishes of a child, if they are intelligent and capable of forming an opinion, are an important factor in custody decisions.
• Courts should prioritize the child’s best interests over strict adherence to legal or religious norms.
• Long-term care and a stable environment are significant factors in determining a child’s welfare.

Directions

No specific directions were issued by the Supreme Court in this case. However, the Court emphasized that the appellants should adhere to their stand taken during the course of arguments, as noticed above. The Court expects the appellants to continue providing a stable and caring environment for the child.

Specific Amendments Analysis

Not Applicable.

Implications

This judgment has significant implications for child custody cases in India:

• It reinforces the principle that the welfare of the child is paramount in custody disputes.
• It highlights the importance of stability and continuity in a child’s life.
• It emphasizes that the child’s wishes should be given due consideration, especially when the child is mature enough to understand their own welfare.
• It clarifies that personal laws and parental rights are not the sole determining factors in custody cases.
• It provides a clear precedent for courts to prioritize the child’s best interests over other considerations.
• It underscores the court’s role as parens patriae, acting as the ultimate guardian of the child.