“Welfare of the child is of paramount consideration and not personal law and statute,” SC while granting custody of a minor child to her aunt other than biological father

In a recent judgment, Shazia Aman Khan and another vs. The State of Orissa and others, the Supreme Court (SC) of India held that in the case of child’s custody welfare of the child is of paramount consideration and not personal law and statute. In this case, the SC granted custody of a minor child to her aunt, who was taking care of her when she was 3 to 4 months after the minor child’s father requested the same, other than the child’s biological father. The bench found 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 respondent No.2 (biological father of the child), where she has not lived ever since her birth. Stability of the child is also of paramount consideration.” The matter was heard by a two-judge bench consisting of Justice CT Ravikumar and Justice Rajesh Bindal. 

In this case, twin daughters were born to respondent No. 2 and his wife (parents of a minor child). The children were born at Ranchi where their maternal grandmother was residing. As the parents were unable to take care of the twins, on the request of respondent No. 2 (father) one was left at Ranchi. The maternal grandmother was not able to take care of the small child; therefore, she handed over the child to appellant No. 2 (the real sister of respondent No. 2). This happened when the child was merely 2-3 months old. Ever since then, she has been living with her aunt. Presently, the child is 14 years of age. This case is only regarding the custody of the child as the father filed a habeas corpus petition in 2021 before the Orissa High Court seeking custody of the child. The HC allowed the petition; aggrieved by the order of the HC, the aunt approached the Supreme Court.

The SC observed that “the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.” It further said, “It is the welfare 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…” The child was called in the SC and it has been observed that the child is quite intelligent, and could understand her welfare. Moreover, the bench opined, “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.” After considering all these contentions, the SC said that the child cannot be treated as a chattel at the age of 14 years to hand over her custody to her biological father, where she has not lived ever since her birth. Therefore, the bench set aside the impugned order of the HC and granted custody of the child to her aunt.