Adoptive parents get custody as SC steps around Muslim law
In a rare instance, SC stepped around Muslim personal law and awarded custody of a 1 old girl to her foster parents reversing an Orissa HC ruling allowing the biological pare take back their daughter, one of the twins who was left in foster care when she was 2- months old
New Delhi: In a rare instance, SC stepped around Muslim personal law and awarded custody of a 14-year-old girl to her foster parents reversing an Orissa HC ruling allowing the biological parents to take back their daughter, one of the twins who was left in foster care when she was 2-3 months old.
A bench of Justices C T Ravikumar and Rajesh Bindal interacted with the girl, who categorically stated that she was happy with the foster parents with whom she had lived for a decade and half and concluded that in the best interest and welfare of the child, her custody with foster parents should not be disturbed.
Twin daughters were born at Ranchi, where their maternal grandmother resided, to Rourkela-based biological parents in March 2010. As the parents were unable to take care of twins, one was left with the mother’s unmarried sister Shazia Aman Khan when the child was 2-3 months old. Since then, she had lived with her aunt, who later got married and had two children.
In 2015, the biological mother filed a case of kidnapping against her sister to wrest custody of her daughter. But the police closed the case finding the charges false. The trial court accepted the closure report in Feb 2017
Later the mother filed a petition before Patna HC seeking recovery of the child, but she withdrew her petition unable to sustain her plea with cogent grounds. SC bench said, “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 with her maternal grandmother on account of the financial difficulty faced by the father.”
In 2022, a petition was filed by the biological father in Orissa HC seeking custody of the child on the ground that there is no system of adoption of child in Muslim law and that custody of a child can only be given through Kafalah, even though the child does not cut-off relationship with biological parents.
Countering this and to show bona fide about treating the girl as their own daughter, the aunt said she was “ready and willing to deposit a sum of Rs 10 lakh in FDR in bank in her name and also transfer property worth Rs 50 lakh”. It is the welfare of the child and not the personal law or the statute which deserve paramount consideration, the foster mother told SC.
Reversing Orissa high court decision and allowing the child to remain with her aunt, the bench said the 14-year-old girl “is capable of forming an opinion in that regard. She cannot be treated as a chattel at the age of 14 years.”