Gujarat High Court: In a writ petition filed by parental grandmother and paternal aunts of a minor girl, seeking quashing of the orders of the trial Magistrate and the Sessions Court directing them to hand over custody of the minor to her biological mother, the Single Bench of M.R. Mengdey, J., allowed the petition, holding that both the courts below had failed to examine the actual question before them and instead wrongfully interpreted the Mohammedan Law to hand over the custody of the minor girl to her mother.
Background
It was the case of the petitioners i.e. the paternal grandmother and paternal aunts of the minor, that, right after the death of minor’s father, respondent 2 i.e. minors’ mother, abandoned the minor, then 13 days-old, with the petitioners, and the minor had remained in their custody ever since. However, the mother contended that, on her husband’s death she went to her paternal home, to observe Iddat, and despite repeated requests, the petitioners did not return the child to her.
The mother filed an application under Section 97, Criminal Procedure Code, 1973 (CrPC), before the Second Additional Judicial Magistrate, Godhra, seeking custody of her child. The Magistrate held that it had no jurisdiction to decide on the dispute and directed that until the issue of custody of the minor is decided by the court under the provisions of Guardians and Wards Act, 1890, the custody of the minor to be handed over to the mother.
The petitioners’ revision petition under Section 397, CrPC, against the Magistrate’s order was dismissed by the Sessions Court, Panchmahal at Godhra, on 23 September 2022, where the Court relied on Section 352 of Mohammedan Law, and referred to Jammu & Kashmir High Court’s decision in Bashir Ahmad Mir v. Rubin Akhtar, (2011) 1 JKJ 937, to conclude that under the Muslim Law, a mother who has not contracted second marriage, and who is not apostate or wicked or opponent failed to prove her unworthiness to hold custody of minor daughter, she is legally entitled to hold the custody of minor daughter, up to the age of puberty and anyone else holding the same custody would be considered as wrongful confinement.
Contention of the Parties
Petitioners challenged the Section 97 CrPC application, arguing that the same is only attracted where a person is illegally detained, and the Sessions Court erred in relying on Section 352 and Bashir Ahmad Mir (supra) judgment in its order. They contended that since they have been holding the custody of the minor girl from the age of 13-days old, the question of illegal confinement does not arise. Additionally, petitioners also relied on Section 353 of Mohammedan Law, where a ‘grandmother’ is also recognised as a guardian. Petitioners also argued that the respondent no.2 earns meagre means and is also a Bangladeshi National residing in India without any long-term visa, and faces a risk of deportation, making it impermissible under Section 97 CrPC to hand over the custody of minor girl to her.
Whereas the mother contended that even after the petitioners submitted the undertaking for providing the custody of her daughter before the trial court, they have not handed over the custody of the minor child to her. Additionally, she submitted that she held a valid long-term visa and that her nationality does not bar her from ‘right to relief’ under Section 97 CrPC, and considering the girl is minor, her welfare lies with her biological mother; a contention which the subordinate court weighed in her favour.
Analysis
The High Court observed that a substantial adjudication of the custodial entitlement is different from the limited scope of a petition under Section 97 CrPC, or a Section 397 CrPC revision petition.
Although the Trial Court had acknowledged the absence of jurisdiction to determine the entitlement of the custody of the minor, it nevertheless directed to handover the custody pending the Guardians and Wards proceedings. Subsequently, the Sessions Court, in Section 397 CrPC revision petition, compounded the error, where it determined the question of custodian entitlement itself by applying Section 352 of Mohammedan Law, and referring to judgment of Bashir Ahmad (supra) to conclude that petitioners’ holding the custody of minor girl illegal.
The Court held this approach to be erroneous and misconceived. As per Mohammedan Law up to the age of 7 years, custody of the minor male child remains with the mother and up to the age of puberty, custody of the minor female child will remain with the mother. However, this does not automatically convert the custody of minor with her grandparent wrongful, or unlawful confinement for the purpose of Section 97 CrPC. The subordinate courts committed error in conflating the personal law and illegal detention under Section 97 CrPC to determine the enquiry of custody of minor child.
Decision
Allowing the petition, the Court quashed and set aside the Sessions Court’s order dated 23.09.2022 and remanded the Criminal Revision Application No. 49 of 2022 for fresh consideration, directing the Sessions Court to expedite the matter afresh, preferably within six months of receipt of the order. The Court also clarified that until the Sessions Court concludes the matter, the custody of the child would remain with the petitioners and interim arrangement permitting respondent 2 to visit her daughter daily.
[X v. State of Gujarat, R/Special Criminal Application (Quashing) No. 10949 of 2022 with Criminal Misc. Application (Direction) No. 1 of 2022, decided on 1-9-2026]
Advocates who appeared in this case:
For the Petitioners: G.G. Solanki, Rahil P. Joshi, Jayraj Chauhan and Dhruv R. Thakkar, Advocates.
For Respondent 1 (State): Krina P. Calla, APP.
For Respondent 2: Hitesh L. Gupta and Nayan L. Gupta, Advocates.
Buy Code of Criminal Procedure, 1973 HERE
