The Supreme Court in the case Shazia Aman Khan And Anr. v. State of Orissa And Ors observed and has stayed the order passed by the Orissa High Court, wherein the court directed for the restoration of custody of a minor girl child to her father.
The High Cour tin the case issued the writ of habeas corpus u under the parens patriae jurisdiction.
The vacation bench comprising of Justice BV Nagarathna and Justice Manoj Misra in the case observed wherein the plea is moved challenging the order passed by the Orissa High Court, thus, the court issued the notice.
In the present case, the father had filed the writ plea seeking restoration of custody of his minor daughter. Therefore, it has been averred by the court that the minor, who is currently about 12 years old, has illegally been detained by his sister, niece and the husband’s niece.
Further, the petitioner approached the High Court wherein it has been prayed by him for the issuance of writ of habeas corpus, thus, the court directed the opposite parties in order to produce the minor in the Court and to grant him his daughter’s custody.
It has also been argued by the opposite parties before the court that they are the adoptive parents of the child and that the girl grew up with them in Patna. Further, it is contended that the father had given the child in adoption to his sister. Therefore, they also informed the High Court to the petitioner and his wife had twin daughters and since they had no resources to raise two children, they decided to give one child for adoption.
The court observed that the child was entrusted with the petitioner’s sister as per Muslim tradition of ‘kafalah’. Therefore, the High Court refused to accept the arguments of opposite parties by holding that there was no proof of legal adoption as per the Juvenile Justice Act and the Muslim Personal Law. Thus, the High Court directed that the custody of girl is to be given to the father from that of her aunt.
However, the aunt aggrieved with the order of the High Court approached the Supreme Court, wherein it is contended that the girl grew up with her and shifting her will create an emotional turmoil for her.
Accordingly, the Top Court observed while issuing the notice that the present case has to be seen from the perspective of the child’s best interest.
The bench in the case observed that the order passed by the High Court will lead to the displacement of the child from her