SHAZIA AMAN KHAN AND ANOTHER versus THE STATE OF ORISSA AND OTHERS
[2024] 3 S.C.R. 10, Supreme Court of India, 2024
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
* 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. 
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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.
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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, Sumaiya Khanam in 
his favour, the present appeal has been filed.
5.	
The High Court directed the Registrar (Judicial) of the Court to recover 
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. The authorities of the State Government 
were also directed to execute the writ of Habeas Corpus and hand 
over the child to respondent No. 2.
6.	
Learned counsel for the appellants submitted that twin daughters 
were born to respondent No. 2 and his wife on 20.03.2010. The 
respondent No. 2 at that time was living at Rourkela. The children 
were born at Ranchi where their maternal grand mother was residing. 
As he was unable to take care of twins, on his request, one was left 
at Ranchi. Appellant No. 2 is the real sister of respondent No. 2. As 
the maternal grand mother could not take care of the small child, she 
was handed
over to the appellant No. 2. This happened when the 
child was merely 2-3 months old. Ever since then, she is living with 
her. No issue was raised by respondent No. 2 at any time. It was 
only in the year 2015, a complaint was filed by respondent No. 2 with 
the police regarding kidnapping of the child against the appellants 
and respondents No. 7 and 9. As it was not a case of kidnapping, 
1	
Order dated 03.04.2023
2	
High Court of Orissa at Cuttack
3	
WPCRLNo. 160 of 2021
[2024] 3 S.C.R. 
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Shazia Aman Khan and Another v. The State of Orissa and Others
as alleged, closure report was filed by the police on 31.08.2016, 
which was accepted by the Court, vide order dated 11.02.2017. No 
objection was raised by respondent No. 2 to the acceptance of the 
closure report. However, a private complaint4 dated 27.03.2017 was 
filed by respondent No. 2 under Sections 363, 346, 120-B IPC with 
reference to the custody of the child by taking a different stand. The 
aforesaid complaint is stated to be still pending. In a petition5 filed 
by the appellants and respondents No. 7 and 9 before the High 
Court seeking quashing of the complaint, further proceedings in the 
complaint have been stayed.
6.1	 Immediately after filing of the aforesaid complaint by the 
respondent No. 2, wife of respondent No.2, namely, biological 
mother of the child, filed petition6 in the High Court of Judicature 
at Patna praying for issuance of directions to the official 
respondents to recover the child from the wrongful confinement 
of the private respondents therein. However, when no case 
could be made out, the aforesaid petition was dismissed as 
withdrawn with liberty to avail remedy in accordance with law. 
The fact remains that thereafter the mother of the child did 
not avail any other remedy for seeking custody of the child. In 
fact, they were not interested at all. It was the litigation only 
for the sake of it. The child was left by respondent No. 2 with 
her
maternal grand mother on account of the financial difficulty 
faced by him at that time.
6.2	 More than four years thereafter, respondent No. 2 filed a Writ 
Petition in the High Court praying for custody of the child. 
While entertaining the Writ Petition, the High Court, vide order 
dated 11.02.2022, noticed the issues need to be examined in 
the Writ Petition. However, at the time of hearing the matter, 
the High Court framed different issues, as have been noticed 
in paragraph No. 57 of the impugned judgement.
6.3	 He further submitted that number of documents were placed by 
the appellants before the High Court which clearly establish that 
the child ever since is living with the appellants and respondent 
4	
 ICC CaseNo.120 of2017
5	
 CRLMC NO. 549 of2019
6	
 Criminal Writ Jurisdiction Case No. 1232 of 2017
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No. 10. At the time of her birth, her name was Sumaiya Khanam, 
which was later on changed to Dania Aman Khan. A Petition7 
has been filed under the Guardianship and Wards Act, 1890 
by appellant No.1 and respondent No.10, which is stated to be 
pending. However, he submitted that in the present proceedings, 
the appellants are only raising the issue regarding custody of 
the child and not guardianship. He fairly submitted that there 
is no system of adoption of child in Mohammaden law. It is 
only Kafalah, in terms of which only custody can be given to 
another person, however, the child does not sever relations 
with biological parents.
6.4	 Learned counsel for the appellants on instructions categorically 
stated that appellant No. 1 and respondent No. 10 have two more 
children. The child, of which they have the custody ever since 
her birth will have equal rights along with two other children. 
She will not be discriminated in any manner whatsoever.
6.5	 Further raising the issue regarding the conduct of respondent 
No. 2, he submitted that firstly a petition for Habeas Corpus 
was filed by the wife of respondent No. 2 before the High Court 
of Judicature at Patna five years after the child had been living 
with appellant No. 1 and respondent No. 10. The same was 
dismissed as withdrawn. Four years thereafter, similar petition 
was filed by respondent No. 2 before the High Court of Orissa. 
Time gap shows that the
respondent No. 2 is not interested in 
custody of the child.
6.6	 He further submitted that to show their bonafide, appellant 
No. 1 and respondent No. 10 are ready and willing to deposit 
a sum of ₹ 10,00,000/- in FDR in bank in her name and also 
transfer property having market value of about ₹ 50,00,000/-. 
At present, the child is grown up. She is 14 years of age. She 
is capable of forming an opinion about her best interest. The 
welfare of the child is of paramount consideration and not the 
rights of the parties. Stability is most important factor as any 
order passed by this Court may dislodge the child from the family 
where she is settled for the last 14 years. Her transplantation 
at this stage may not be in her best interest. It is the welfare 
7	
 Guardianship Case No. 23 of 2016 before the Court of Principal Judge, Family Court, Patna
[2024] 3 S.C.R. 
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Shazia Aman Khan and Another v. The State of Orissa and Others
of the child and not the personal law or the statute which has 
paramount consideration, when the parties are fighting. In 
support of his argument that it is only the best interest of the 
child which is to be considered in such matters and also the 
difference between custody and guardianship, reliance was 
placed upon the judgment of this Court in Athar Hussain v. 
Syed Siraj Ahmed and others8.
7.	
In response, learned counsel for respondent No. 2 submitted 
that it is not the case of abandonment of a child, as is sought to 
be projected by the appellants now. No parents will ever think of 
that, what to talk of actually doing it. The child was left with her 
maternal grand mother and thereafter handed over to appellant 
No.2 for her initial upbringing when she was 3-4 months old. She 
further submitted that when repeated requests for returning back 
the child were not acceded to, respondent No. 2 did not have any 
choice but to lodge an FIR in which a closure report was filed and 
accepted also. She further submitted that even during this period of 
five years, the child had been coming to her parents off and on. It 
was further submitted that after the closure report in the aforesaid 
FIR was accepted, respondent No. 2 filed a complaint dated 
27.03.2017 under Sections 363, 346, 120-B IPC with reference to 
the custody of the child. The aforesaid complaint is stated to be 
still pending.
In a petition9 filed by the appellants and respondents 
No. 7 and 9 seeking quashing of the complaint, further proceedings 
in the complaint have been stayed by the High Court of Orissa. 
Immediately after filing of the aforesaid complaint by respondent 
No. 2, his wife, i.e., biological mother of the child, filed the petition 
in the High Court of Judicature at Patna praying for issuance of 
directions to the official respondents to recover the child from 
the wrongful confinement of the private respondents therein. The 
aforesaid petition was dismissed as withdrawn with liberty to avail 
any other remedy in accordance with law.
7.1	 Explaining the delay in filing the petition before the High Court, 
learned counsel for respondent No. 2 submitted that it is was 
because of COVID pandemic. She further submitted that since 
8	
(2010) 2 SCC 654
9	
CRLMC N0. 549 of 2019
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2015, the biological parents of the child have not even been able 
to meet her. Respondent No. 2 was and is able to take care of 
all the needs of the child and provide her best education, as 
is being provided to the sister of the child as twins were born. 
It was further argued that appellant No. 1 got married with 
respondent No. 10, who is a stranger to the family. In terms 
of Mohammedan law, custody of the child cannot be given to 
the stranger, who is beyond prohibitory degree for marriage 
but she fairly submitted that they all are living in a joint family.
7.2	 It was further argued that one of the prayers made by the 
appellants before this Court is that appellant No. 2 be permitted 
to stay for some time with the child in case custody is handed 
over to respondent No. 2 so that the child settles in new 
atmosphere. Respondent No. 2 does not have any objection to 
the fair offer made by the appellants. In fact, when the child was 
handed over to appellant No.1, she was un-married. However, 
thereafter she got married and is having two children. The child 
may be discriminated. If the custody of the child is handed 
over to respondent No. 2, the distance between Patna and 
Rourkela being not much, the appellants are always welcome 
to visit the child. The question is also of the identity of the child 
which has been lost in the process. If she comes back, she 
will also have love, affection and company of her twin
sister. In 
support, reliance was placed upon Tejaswani Gaud v. Shekhar 
Jagdish Prasad Tewari10 and Rohith Thammana Gowda v. 
State of Karnataka and others11. The Prayer is for dismissal 
of the appeal.
8.	
Heard learned counsel for the parties and perused the relevant 
referred record.
9.	
The undisputed facts on record are that twins were born to respondent 
No. 2 and his wife on 20.03.2010. One of them, the custody of whom 
is in question, has undisputedly been living with appellant No. 2 ever 
since she was 3-4 month old and thereafter with the family. Presently, 
she is about 14 years of age. It is not a case in which any of the 
parties is claiming adoption which otherwise is not permissible under 
10	
[2019] 7 SCR 335 : AIR 2019 SC 2318
11	
[2022] 4 SCR 784 : AIR 2022 SC 3511
[2024] 3 S.C.R. 
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Shazia Aman Khan and Another v. The State of Orissa and Others
Mohammedan law. Guardianship is also not being claimed. It is only 
the dispute regarding custody of the child.
10.	 Before we deal with the issue on merits, we deem it appropriate to 
refer to the legal position on the issues.
11.	 This Court in Athar Hussain v. Syed Siraj Ahmed and others’case 
(supra) had elaborated the concept of custody, guardianship and 
stability of child, while holding as under:
“31. We are mindful of the fact that, as far as the matter 
of guardianship is concerned, the prima facie case lies in 
favour of the father as under Section 19 of the GWC Act, 
unless the father is not fit to be a guardian, the Court has 
no jurisdiction to appoint another guardian. It is also true 
that the respondents, despite the voluminous allegations 
leveled against the appellant have not been able to prove 
that he is not fit to take care of the minor children, nor has 
the Family Court or the High Court found him so. However, 
the question of custody is different from the question 
of guardianship. Father can continue to be the natural 
guardian of the children; however, the considerations 
pertaining to the welfare of the child may indicate lawful 
custody with another friend or relative as serving his/her 
interest better.

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37. Stability and consistency in the affairs and routines of 
children is also an important consideration as was held by 
this Court in another decision cited by the learned counsel 
for the appellant in Mausami Moitra Ganguli v. Jayant 
Ganguli, (2008)7 SCC 673. This Court held:
“24.....We are convinced that the dislocation 
of Satyajeet, at this stage, from Allahabad, 
where he has grown up in sufficiently good 
surroundings, would not only impede his 
schooling, it may also cause emotional strain 
and depression to him.”

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After taking note of the marked reluctance on the part of 
the boy to live with his mother, the Court further observed:
“26. Under these circumstances and bearing in 
mind the paramount consideration of the welfare 
of the child, we are convinced that child’s interest 
and welfare will be best served if he continues 
to be in the custody of the father. In our opinion, 
for the present, it is not desirable to disturb the 
custody of Master Satyajeet and, therefore, 
the order of the High Court giving his exclusive 
custody to the father with visitation rights to the 
mother deserves to be maintained.”
[Emphasis supplied]

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xx
41. However, the High Court of Rajasthan held that in the 
light of Section 19 which bars the Court from appointing 
a guardian when the father of the minor is alive and not 
unfit, the Court could not appoint any maternal relative as 
a guardian, even though the personal law of the minor 
might give preferential custody in her favour. As is evident, 
the aforementioned decision concerned appointment of a 
guardian. No doubt, unless the father is proven to be unfit, the 
application for guardianship filed by another person cannot 
be entertained. However, we have already seen that the 
question of custody was distinct from that of guardianship. 
As far as matters of custody are concerned, the Court is not 
bound by the bar envisaged under Section 19 of the Act.”
[Emphasis supplied]
12.	 This Court in Mausami Moitra Ganguli v. Jayant Ganguli12, opined 
that the stability and security of the child is an essential ingredient for 
full development of child’s talent and personality. Relevant paragraph 
thereof is extracted below:
“23. Having bestowed our anxious consideration to the 
material on record and the observations made by the 
12	
[2008] 8 SCR 260 : (2008) 7 SCC 673
[2024] 3 S.C.R. 
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Shazia Aman Khan and Another v. The State of Orissa and Others
courts below, we are of the view that in the present case 
there is no ground to upset the judgment and order of the 
High Court. There is nothing on record to suggest that the 
welfare of the child is in any way in peril in the hands of 
the father. In our opinion, the stability and security of the 
child is also an essential ingredient for a full development of 
child’s talent and personality. As noted above, the appellant 
is a teacher, now employed in a school at Panipat, where 
she had shifted from Chandigarh some time back. Earlier 
she was teaching in some school at Calcutta. Admittedly, 
she is living all alone. Except for a very short duration 
when he was with the appellant, Master Satyajeet has 
been living and studying in Allahabad in a good school 
and stated to have his small group of friends there. At 
Panipat, it would be an entirely new environment for him 
as compared to Allahabad.
[Emphasis supplied]
13.	 In Nil Ratan Kundu and another v. Abhijit Kundu13, this Court laid 
down the principles governing custody of minor children and held 
that welfare of the children is to be seen and not the rights of the 
parties by observing as under:
“Principles governing custody of minor children
53. In our judgment, the law relating to custody of a child 
is fairly well-settled and it is this. In deciding a difficult 
and complex question as to custody of minor, a Court of 
law should
keep in mind relevant statutes and the rights 
flowing therefrom. But such cases cannot be decided solely 
by interpreting legal provisions. It is a humane problem 
and is required to be solved with human touch. A Court 
while dealing with custody cases, is neither bound by 
statutes nor by strict rules of evidence or procedure nor 
by precedents. In selecting proper guardian of a minor, 
the paramount consideration should be the welfare and 
well-being of the child. In selecting a guardian, the Court 
is exercising parens patriae jurisdiction and is expected, 
13	
[2008] 11 SCR 1111 : (2008) 9 SCC 413

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nay bound, to give due weight to a child’s ordinary comfort, 
contentment, health, education, intellectual development 
and favourable surroundings. But over and above physical 
comforts, moral and ethical values cannot be ignored. 
They are equally, or we may say, even more important, 
essential and indispensable considerations. If the minor is 
old enough to form an intelligent preference or judgment, 
the Court must consider such preference as well, though 
the final decision should rest with the Court as to what is 
conducive to the welfare of the minor.

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55. We are unable to appreciate the approach of the 
Courts below. This Court in catena of decisions has held 
that the controlling consideration governing the custody 
of children is the welfare of children and not the right of 
their parents.”
[Emphasis supplied]
14.	 This Court has consistently held that welfare of the child is of 
paramount consideration and not personal law and statute. In Ashish 
Ranjan v. Anupam Tandon and another14, this Court held as under:
“19. The statutory provisions dealing with the custody of 
the child under any personal law cannot and must not 
supersede the paramount consideration as to what is 
conducive to the welfare of the minor. In fact, no statute 
on the subject, can ignore, eschew or obliterate the vital 
factor of the welfare of the minor.
15.	 This Court in Roxann Sharma v. Arun Sharma15, opined that the 
child is not a chattel or ball that it is bounced to and fro. Welfare 
of the child is the focal point. Relevant lines from para-No. 18 are 
reproduced hereunder:
“18........There can be no cavil that when a court is 
confronted by conflicting claims of custody there are no 
rights of the parents which have to be enforced; the child 
14	
[2010] 14 SCR 961 : (2010) 14 SCC 274
15	
[2015] 2 SCR 572 : (2015) 8 SCC 318
[2024] 3 S.C.R. 
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Shazia Aman Khan and Another v. The State of Orissa and Others
is not a chattel or a ball that is bounced to and fro the 
parents. It is only the child’s welfare which is the focal point 
for consideration. Parliament rightly thinks that the custody 
of a child less than five years of age should ordinarily be 
with the Mother and this expectation can be deviated from 
only for strong reasons”
16.	 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. Reference 
can be made to Rohith Thammana Gowda v. State of Karnataka 
and others’ case (supra). It was held as under:
“13. We have stated earlier that the question ‘what is 
the wish/desire of the child’ can be ascertained through 
interaction, but then, the question as to ‘what would be the 
best interest of the child’ is a matter to be decided by the 
court taking into account all the relevant circumstances. A 
careful scrutiny of the impugned judgment would, however, 
reveal that even after identifying the said question rightly 
the High Court had swayed away from the said point and 
entered into consideration of certain aspects not relevant 
for the said purpose. We will explain the raison d’etre for 
the said remark.”
17.	 In the case in hand, vide order dated 12.12.2023, we had called the 
child in Court. We had interacted with the child, the appellants and 
respondent No. 2 individually in chamber. We found the child to be
quite intelligent, who could understand her welfare. She categorically 
stated that she is happy with the family where she has been brought 
up. She has other brother and sister. She is having cordial relations 
with them. She does not wish to be destabilized.
18.	 The judgment in Tejaswani Gaud v. Shekhar Jagdish Prasad 
Tewari’s case (supra), relied upon by learned counsel for respondent 
No. 2 does not come to her rescue for the reason that age of the 
child in that case was merely five years. It is a case which lays down 
guidelines as to how custody of the child is to be handed over.
19.	 The fact that appellant No. 1, when custody of the child was handed 
over to her, was un-married 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
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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.
20.	 In view of our aforesaid discussions, we find that the 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. 
Keeping in view her age at present, she is capable of forming an 
opinion in that regard. She was quite categoric in that regard when 
we interacted with her. 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 ever since her birth. Stability of the child is 
also of paramount consideration.
21.	 The appeal is accordingly allowed. The impugned order passed by 
the High Court is set aside, as a result of which the writ petition filed 
by respondent No. 2 in the High Court is dismissed. We expect the 
appellants to adhere to the stand taken by them during the course 
of arguments, as noticed above.
Headnotes prepared by: Divya Pandey
Result of the Case: 
Appeal allowed.