Court holds that custody with paternal relatives cannot be deemed illegal confinement merely on Mohammedan Law entitlement; directs expeditious hearing for custody dispute between biological mother and paternal relatives.
In a significant judgment delivered on September 1, 2026, the Gujarat High Court, through Justice M. R. Mengdey, quashed and set aside the order of the Sessions Court that had directed the custody of a minor girl, Hussaina, to be handed over to her biological mother, the respondent, from her paternal grandmother and aunts, the petitioners. The High Court emphasized that the entitlement of custody under Mohammedan Law does not automatically render the custody held by paternal relatives as illegal confinement under Section 97 of the Criminal Procedure Code (Cr.P.C.).
The dispute arose when the biological mother, who is a Bangladeshi citizen residing in India, sought custody of her minor daughter Hussaina, who had been in the care of her paternal grandmother and aunts since birth. The mother filed a Criminal Miscellaneous Application under Section 97 Cr.P.C., claiming illegal confinement of the child. The trial Magistrate ordered the petitioners to hand over the child's custody to the mother, a decision upheld by the Sessions Court relying heavily on Mohammedan Law, particularly Section 352, which entitles the mother to custody of a female child up to puberty unless disqualified.
However, the High Court found that the Sessions Court erred by conflating the entitlement to custody under Mohammedan Law with the issue of illegal detention under Section 97 Cr.P.C. The Court observed that while Mohammedan Law grants custody rights to the mother, this alone does not imply that custody held by paternal relatives amounts to wrongful confinement. The child's custody with the grandmother and aunts, who had cared for her since she was 13 days old, cannot be termed as illegal confinement in the absence of other factors.
The Court further noted procedural irregularities, such as the Sessions Court relying on a prior Jammu and Kashmir High Court ruling without providing the petitioners an opportunity to address it. The Court highlighted that the trial and Sessions Courts had held that only a competent court under the Guardians and Wards Act, 1890, can decide custody issues, yet they passed orders under Section 97 Cr.P.C., which addresses illegal detention rather than custody disputes.
Given these factors, the Gujarat High Court remanded the matter to the Sessions Court for a fresh hearing strictly confined to the issue of illegal confinement under Section 97 Cr.P.C., ensuring both parties are heard. The Court directed the Sessions Court to complete the proceedings expeditiously, preferably within six months. Meanwhile, the interim arrangement allowing the mother to visit the minor every Sunday was to continue.
The judgment underscores the importance of distinguishing between legal entitlement to custody under personal laws and the criminal law provision concerning illegal detention. It also reiterates that disputes relating to custody must primarily be adjudicated under the Guardians and Wards Act rather than criminal provisions.
This ruling provides clarity on the jurisdictional boundaries in custody disputes involving Muslim personal law and criminal law, emphasizing due process and the welfare of the minor child.
Bottom Line:
Custody of minor child under Section 97 of Cr.P.C. - Custody with paternal relatives cannot be termed as illegal confinement solely based on entitlement under Mohammedan Law.
Statutory provision(s):
Section 97 Cr.P.C., Section 352 Mohammedan Law, Guardians and Wards Act, 1890, Section 397 Cr.P.C.
Shaifiya Vajiuddin Contractor v. State of Gujarat, (Gujarat) : Law Finder Doc Id # 2972701
