FACTS-The child at present is 14 years of age, living since birth with the appellants and respondent No.10. twin daughters were born to respondent No. 2 and his wife on 20.03.2010. The respondent No. 2 at that time was living at Rourkela. The children were born at Ranchi where their maternal grandmother was residing. As he was unable to take care of twins, on his request, one was left at Ranchi. Appellant No. 2 is the real sister of respondent No. 2. As the maternal grandmother could not take care of the small child, she was handed over to the appellant No. 2. This happened when the child was merely 2-3 months old. Ever since then, she is living with her. No issue was raised by respondent No. 2 at any time. It was only in the year 2015, a complaint was filed by respondent No. 2 with the police regarding kidnapping of the child against the appellants and respondents No. 7 and 9. As it was not a case of kidnapping, as alleged, closure report was filed by the police. However, a private complaint dated 27.03.2017 was filed by respondent No. 2 under Sections 363, 346, 120-B IPC with reference to the custody of the child by taking a different stand. The respondents No. 7 and 9 before the High Court seeking quashing of the complaint, further proceedings in the complaint have been stayed.

ISSUE- Whether Personal Law Or Statute Can't Override Welfare Of Child?

In 2021, the father filed a habeas corpus petition before the Orissa High Court seeking custody of the child. In 2023, the High Court allowed the petition, directing the restoration of the child to the father. Challenging this order, the aunt approached the Supreme Court. In June 2023, the Supreme Court had stayed the High Court's order.

OBSERVATION-Before the Supreme Court, it was contended by respondent no.1/biological father that the custody of the minor child cannot be vested in the relative/appellant no.2 as Muslim law prohibits custody amongst the stranger to the family. It was alleged by the biological father that appellant No. 2 is married to a stranger therefore, the custody cannot be vested with her because in terms of Mohammedan law, custody of the child cannot be given to the stranger, who is beyond prohibitory degree for marriage. Rejecting such contention of respondent no.1/biological father, the Supreme Court observed that the question of custody is different from guardianship, therefore the paramount consideration should be given to the welfare of the child while deciding the question of the child's custody. The court further noted the best interest of the child by taking reference to the child's wish, if she is capable of understanding her welfare

Ultimately, the Supreme Court allowed the appeal, and granted the custody of the minor child to the relative/appellants after founding that “the best interest of the child still remains with the appellant No. 2 as the child is living with her ever since she was 3-4 months old and is now about 14 years of age having no doubt in her mind that she wishes to live with them.”ss