Supreme Court Stays HC Direction Allowing Father To Take Custody Of Minor Girl From 'Adoptive' Parents

“There shall be an interim stay of the direction of the High Court directing the petitioners herein to handover custody of the minor child...to respondent No.2 until further orders.”

A vacation Bench comprising Justice BV Nagarathna and Justice Manoj Misra issue notice is a plea challenging the Orissa High Court order.

The father had filed the writ petition seeking restoration of custody of his minor daughter. It was averred that the minor, who is currently about 12 years old, has been illegally detained by his sister, niece and niece’s husband in. He approached the High Court praying for issuance of writ of habeas corpus, directing the opposite parties to produce the minor in the Court and to grant him his daughter’s custody.

The opposite parties argued that they are the adoptive parents of the child and that the girl grew up with them in Patna. They contended that the father had given the child in adoption to his sister.  They told the High Court that the petitioner and his wife had twin daughters and since they had no resources to raise two children, they decided to give one child for adoption. Accordingly, the child was entrusted with the petitioner's sister as per Muslim tradition of 'kafalah'.  However, the High Court refused to accept the opposite parties' arguments by holding that there was no proof of legal adoption as per the Juvenile Justice Act and the Muslim Personal Law. The High Court directed that girl's custody be given to the father from that of her aunt.

Aggrieved with the High Court order, the aunt approached the Supreme Court, contending that the girl grew up with her and shifting her will create an emotional turmoil for her.

The Supreme Court, while issuing notice, observed that the case has to be seen from the perspective of the child's best interest. The bench noted that the High Court's order will lead to the displacement of the child from her familiar environment.

[Case Title: Shazia Aman Khan And Anr. v. State of Orissa And Ors. SLP(Crl) No. 7290/2023]