Background
The Gujarat High Court has held that merely because Muslim law recognises a mother’s right to custody of her minor daughter until she attains puberty, custody of the child with her paternal grandmother and paternal aunts cannot automatically be treated as illegal confinement.
Justice M.R. Mengdey made the observation while hearing a petition filed by the minor girl’s paternal grandmother and paternal aunts. The child’s biological mother had approached the Magistrate under Section 97 of the Code of Criminal Procedure, 1973, seeking the recovery of the minor on the allegation of wrongful confinement.
The Magistrate, on September 9, 2022, directed the petitioners to hand over the child to the mother. The petitioners challenged the order before the Sessions Court, but their revision application was dismissed on September 23, 2022.
The matter subsequently reached the High Court. During the proceedings, different interim orders were passed concerning the child’s custody and the mother’s access to her. The Supreme Court, on March 11, 2024, set aside an interim direction requiring the petitioners to hand over the child to the mother and directed that the child remain with the petitioners until the High Court decided the matter.
Legal Issue
The main issue before the High Court was whether the custody of the minor with her paternal grandmother and aunts amounted to wrongful confinement so as to justify proceedings under Section 97 CrPC.
The Sessions Court had relied upon Section 352 of the Principles of Mahomedan Law and observed that the mother was entitled to custody of a minor daughter until she attained puberty.
However, the High Court noted that the Sessions Court was required to determine whether the circumstances actually amounted to unlawful confinement and whether the proceedings under Section 97 CrPC were maintainable.
The question of who was legally entitled to custody under personal law was therefore distinct from the question of whether the child was being wrongfully confined.
Court Ruling
The High Court held that the Sessions Court had approached the matter from the question of entitlement to custody under Mahomedan Law, instead of first examining whether the custody of the child with the petitioners constituted unlawful confinement under Section 97 CrPC.
The Court observed that merely because Muslim law entitles the mother to hold custody of her minor daughter until puberty, the child’s custody with her paternal family cannot, on that ground alone, be termed unlawful confinement.
The High Court therefore quashed and set aside the Sessions Court’s order and remanded the matter for fresh consideration.
The Sessions Court was directed to hear both sides and decide the matter afresh, preferably within six months.
Until the fresh decision, the existing interim arrangement allowing the mother to visit the minor every day was directed to continue.
Implications
The judgment distinguishes between a custody right under personal law and wrongful confinement under criminal procedure. A person’s custody of a minor cannot automatically be characterised as illegal confinement merely because another person has a recognised legal claim to custody.
The decision also means that proceedings under Section 97 CrPC require an examination of whether the circumstances actually satisfy the requirement of wrongful confinement. The question of custody entitlement alone cannot determine whether the criminal procedure provision is attracted.
Importantly, the High Court did not finally determine which side was entitled to custody of the minor. Instead, it directed the Sessions Court to reconsider the matter in accordance with the correct legal question.
The Supreme Court had earlier also directed that the child remain with the petitioners during the pendency of the proceedings, while expressly stating that it was not making any observation on the merits of the dispute.
The judgment adds clarity on the distinction between custody disputes under personal law and proceedings concerning alleged unlawful confinement under Section 97 CrPC.
Case Title: Shaifiya Vajiuddin Contractor & Ors. v. State of Gujarat & Anr.
