SC stays Orissa HC order granting custody of minor girl to biological parents

A vacation bench of justices BV Nagarathna and Manoj Misra of the Supreme Court passed an interim order staying the high court direction and issued notice on the appeal filed by Shahnaz Khanam which has now been posted for hearing on July 28

Weighing the child’s interest over that of her biological parents, the Supreme Court on Friday stayed an order passed by the Orissa high court directing the transfer of custody of a 12-year-old girl from her adoptive parents to her biological parents.

The Orissa high court order was passed on April 3 on a habeas corpus petition filed by the girl’s biological father – Nesar Ahmed Khan who accused his elder sister of kidnapping his daughter in 2015 from Rourkela, where he currently resides.

In its order, the high court had directed Ahmed Khan’s elder sister Shahnaz Khanam and her husband (the adoptive parents of the child) to hand over the custody by June 30 failing which a formal order will be passed to hand over the custody of the child to her biological parents.

A vacation bench of justices BV Nagarathna and Manoj Misra of the Supreme Court passed an interim order staying the high court direction and issued notice on the appeal filed by Shahnaz Khanam which has now been posted for hearing on July 28.

“There shall be an interim stay of the direction of the Orissa high court directing the petitioner herein to hand over the custody of the child Dania Aman Khan alias Sumaiya Khanam to respondent 2 (biological father) until further orders,” the top court said.

While passing the interim order, the Supreme Court noted the peculiar facts of the case as the girl grew up with her aunt’s family thinking it to be her home and never recognised her biological parents to be her real parents. Sumaiya was born in Ranchi in February 2010 and had a twin sister. The petition filed before the top court stated that as the biological parents had limited financial means to raise the two daughters, the child’s father had informally consented to the child being brought up by his sister.

Noting the effect of the high court order being too harsh on the child, the Supreme Court bench said, “You have to see this case from the child’s point of view. She will be displaced from a familiar environment, familiar school and taken away to strangers.” The high court order noted that the child does not recognise her biological parents and even her school records mentioned her aunt and her husband to be her parents.

Advocate Shahrukh Alam who appeared for Shahnaz said that the Orissa high court order will create an emotional rupture as the child has stayed with her aunt throughout and received proper care and education in Patna. The advocate further stated that a petition under the Guardian and Wards Act, 1890, was instituted before a Patna family court in 2016 but the case has not progressed for all these years.

The child’s biological father represented by advocate Sagarika Sahoo told the top court that adoption is not recognised under the Mohammedan law of the Muslim Personal Law (Shariat) Application Act, 1937. Even for claiming guardianship, the principles of Mohammedan law allow the father to be the guardian of an unmarried daughter who has attained puberty, she argued.

Even for claiming guardianship under the Guardian and Wards Act, Sahoo said that Section 19 of the 1890 Act provides that a family court cannot appoint a guardian of a minor whose father or mother is alive and is not unfit to be the guardian of the minor.

In 2015, the father of the child registered a criminal case alleging that her daughter was kidnapped by his sister. On this complaint, the Odisha police went to Patna to inspect and found the adoptive parents’ house locked. Later, the case was closed as the police concluded that the father of the child had consented to the adoption of the girl by the sister’s family.

“Parents are the best persons to look after the best interests of the child,” Ahmed Khan’s lawyer argued in the Supreme Court. However, the bench insisted, “Do not treat this case from your point of view. Rather consider from the child’s point of view. Those who look after the child are de-facto guardians.”

The top court further allowed the father of the child to file a response to the appeal by the next date.