The Gujarat High Court has held even though Muslim Law entitles a woman to have her minor daughter's custody until she attains puberty, the child's custody with her paternal family cannot be termed as illegal confinement. [2026 LiveLaw (Guj) 248]

The petitioners were the paternal grandmother and paternal aunts of the minor having her custody, whereas the respondent no.2 is the minor's biological mother.

The mother filed an application before the magistrate court under Section 97 (Search for persons wrongfully confined) Cr.P.C. The Magistrate court on 09.09.2022 directed the petitioners to handover the custody of the minor to the mother. Being aggrieved, the petitioners approached the Sessions Court, which on 23.09.2022 dismissed the petitioners' plea. Against this the petitioners approached the high court.

A coordinate bench hd granted interim relief to the petitioners; thereafter the mother was granted permission to visit the child every Sunday. The mother had moved the Supreme Court which directed high court to expeditiously take up the mother's application for vacating ad-interim relief.

Thereafter, on 23.02.2024, the High Court had directed the petitioners to handover the custody of the child to the mother within two days, failing which, the concerned jurisdictional Police Station was directed to comply with the orders. Against this the petitioners again approached the Supreme Court which on 11.03.2024 quashed the high court order and directed that till the final disposal of the present proceeding, the child would remain with the petitioners.

Justice MR Mengdey in his order noted that the when the matter went before the sessions court it took into consideration the Section 352 of the Mahomedan Law and observed that as per the provision, up to the age of puberty custody of the minor female child will remain with the mother.

The court said that in the revision proceedings Sessions Court was called upon to decide whether custody of the minor with the petitioners amounted to illegal confinement and whether the proceedings under Section 97 of the Cr.P.C. were maintainable in the facts of the present case.

"Instead of doing that learned Sessions Court has decided the issue of entitlement of custody of minor under the Mahommedan Law and has thus, dismissed the Revision Application. It is pertinent to note that only because the Mahommedan Law entitles respondent no. 2 to hold the custody of the minor daughter till she attains the age of puberty, her custody with the petitioners cannot be termed as an unlawful confinement. Under the circumstances, the order passed by the learned Sessions Court is quashed and set aside and the matter is remanded back to the learned Sessions Court for reconsideration and fresh decision," the court held.

It further directed the Sessions Court to decide the matter afresh after hearing both sides as expeditiously as possible preferably six months.

Till the Sessions Court decides the matter afresh, the interim arrangement enabling mother to visit the minor every day shall continue, the court said.

The petition was allowed.

Case title: SHAIFIYA VAJIUDDIN CONTRACTOR & ORS. v/s STATE OF GUJARAT & ANR.

R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10949 of 2022

Citation: 2026 LiveLaw (Guj) 248

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