LexSHAZIA AMAN KHAN AND ANOTHER versus THE STATE OF ORISSA AND OTHERS
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* Author [2024] 3 S.C.R. 10 : 2024 INSC 163 Shazia Aman Khan and Another v. The State of Orissa and Others (Criminal Appeal No.1345 of 2024) 04 March 2024 [C.T. Ravikumar and Rajesh Bindal,* JJ.] Issue for Consideration Custody of a minor child in parens patriae jurisdiction. Headnotes Child and Family Welfare – Custody of minor child – Custody of one of the twin daughters born to respondent No.2 and his wife is in question, who had undisputedly been living with appellant No.2 (real sister of respondent No. 2) ever since she was 3-4 month old and thereafter with the family: Held: Stability and security of the child is an essential ingredient for full development of child’s talent and personality – Welfare of the children is of paramount consideration and not personal law and statute – Child’s welfare is to be seen and not the rights of the parties – Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of – Presently, the child is about 14 years of age – She was called in Court and interacted with individually in chamber – She is quite intelligent and could understand her welfare – She categorically stated that she was happy with the family where she had been brought up – She has other brother and sister and is having cordial relations with them and she does not wish to be destabilized – The fact that appellant No.1 was un-married when custody of the child was handed over to her 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 – 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 – 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 [2024] 3 S.C.R. 11 Shazia Aman Khan and Another v. The State of Orissa and Others ever since her birth – Stability of the child is also of paramount consideration – Impugned order passed by the High Court inter alia directing the recovery of 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 is set aside – Writ petition filed by respondent No. 2 in the High Court dismissed. [Paras 12-14, 16, 17, 19-21] Case Law Cited Tejaswani Gaud v. Shekhar Jagdish Prasad Tewari, [2019] 7 SCR 335 : AIR 2019 SC 2318 – held inapplicable. Athar Hussain v. Syed Siraj Ahmed and others, [2010] 1 SCR 49 : (2010) 2 SCC 654; Rohith Thammana Gowda v. State of Karnataka and others, [2022] 4 SCR 784 : AIR 2022 SC 3511; Mausami Moitra Ganguli v. Jayant Ganguli, [2008] 8 SCR 260 : (2008) 7 SCC 673; Nil Ratan Kundu and another v. Abhijit Kundu, [2008] 11 SCR 1111 : (2008) 9 SCC 413; Ashish Ranjan v. Anupam Tandon and another, [2010] 14 SCR 961 : (2010) 14 SCC 274; Roxann Sharma v. Arun Sharma, [2015] 2 SCR 572 : (2015) 8 SCC 318 – relied on. List of Keywords Custody of minor child; Parens patriae jurisdiction; Stability and security of the child; Welfare of the child; Wish of the child; Mohammaden law. Case Arising From CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1345 of 2024 From the Judgment and Order dated 03.04.2023 of the High Court of Orissa at Cuttack in WPCRL No.160 of 2021 Appearances for Parties Amit Pawan, Anand Nandan, Abhishek Amritanshu, Aakarsh, Hassan Zubar Waris, S.S. Rawat, Ms. Shivangi, Advs. for the Appellants. Shovan Mishra, Ms. Bipasa Tripathy, Ms. Sagarika Sahoo, Anam Charan Panda, Hitendra Nath Rath, Akshat Srivastava, Advs. for the Respondents. 12 [2024] 3 S.C.R. Digital Supreme Court Reports Judgment / Order of the Supreme Court Judgment Rajesh Bindal, J. 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 passed by the High Court2 in a Writ Petition3 filed by respondent No.2, who is biological father of the child, for restoration of her custody, namely, Su
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