SHAZIA AMAN KHAN AND ANOTHER versus THE STATE OF ORISSA AND OTHERS

SHAZIA AMAN KHAN AND ANOTHER versus THE STATE OF ORISSA AND OTHERS

The Supreme Court allowed the appeal, set aside the High Court order directing recovery and handing over of the child to respondent No.2, and held that custody should remain with the appellants and respondent No.10 because the child's welfare and stability weigh in favour of them; the 14-year-old child is capable of forming and expressing a preference and has expressly stated she wishes to remain with the family that raised her, and welfare considerations override personal law presumptions regarding guardianship.

Parties
Appellants: Shazia Aman Khan and Another; Respondents: The State of Orissa and Others
Jurisdiction
India
Judgment Date
04 March 2024
Procedural Posture
Criminal Appeal No.1345 of 2024 / On Appeal From the High Court of Orissa Order Dated 03.04.2023 in WPCRL No.160 of 2021
Outcome
Appeal allowed; impugned order of the High Court dated 03.04.2023 set aside; writ petition filed by respondent No.2 dismissed
Legal Topics
Custody of Minor Child, Stability and Security of the Child, Welfare of the Child, Wish of the Child, Mohammaden Law
Child and Family Welfare Parens Patriae Jurisdiction Custody of Minor Child Stability and Security of the Child Welfare of the Child Wish of the Child Mohammaden Law

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Parties

Shazia Aman Khan and Another

Appellants

The State of Orissa and Others

Respondents

Procedural Posture

Criminal Appeal No.1345 of 2024 / On Appeal From the High Court of Orissa Order Dated 03.04.2023 in WPCRL No.160 of 2021

Legal Issues

  1. 1 Whether custody of the minor child should be restored to biological father (respondent No.2) or remain with the appellants and respondent No.10
  2. 2 Whether the wish of the 14-year-old child should be given weight
  3. 3 Whether stability and welfare of the child outweigh personal law/statutory presumptions regarding guardianship

Ratio Decidendi

The Supreme Court allowed the appeal, set aside the High Court order directing recovery and handing over of the child to respondent No.2, and held that custody should remain with the appellants and respondent No.10 because the child's welfare and stability weigh in favour of them; the 14-year-old child is capable of forming and expressing a preference and has expressly stated she wishes to remain with the family that raised her, and welfare considerations override personal law presumptions regarding guardianship.

Court Disposition

Appeal allowed; impugned order of the High Court dated 03.04.2023 set aside; writ petition filed by respondent No.2 dismissed

Orders

  • Appeal allowed
  • Order dated 03.04.2023 of the High Court of Orissa set aside