SHAIFIYA VAJIUDDIN CONTRACTOR vs STATE OF GUJARAT

Court
Gujarat High Court

R/SCR.A/10949/2022 (GJHC240669132022) CAV JUDGMENT DATED:
01/09/2026
Reserved On : 10/08/2026
Pronounced On : 01/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10949 of 2022
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2022
In R/SPECIAL CRIMINAL APPLICATION NO. 10949 of 2022

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE M. R. MENGDEY :- sd/-

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Approved for Reporting Yes No
✔
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SHAIFIYA VAJIUDDIN CONTRACTOR & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DHRUV R THAKKAR(11280) for the Applicant(s) No. 3
MR GG SOLANKI(5562) for the Applicant(s) No. 1,2,3
MR JAYRAJ CHAUHAN(2966) for the Applicant(s) No. 2
MR. RAHIL P. JOSHI(16415) for the Applicant(s) No. 1
MR HITESH L GUPTA(3937) for the Respondent(s) No. 2
MR NAYAN L GUPTA(11798) for the Respondent(s) No. 2
MS. KRINA P. CALLA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE M. R. MENGDEY


CAV JUDGMENT
1. By filing the present petition under Article 226 of the
Constitution of India the petitioners have prayed for the
following reliefs:-
(A) Your Lordships may be pleased to admit and allow
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this Special Criminal Application.
(B) Your Lordships may be pleased to issue a writ of
certiorari or any other writ, order or direction,
quashing and setting aside the impugned orders i.e.
order dated 09.09.2022 passed by the learned trial
Court in Criminal Misc. Application No.106 of 2022
and the judgment and order dated 23.09.2022
passed by the learned Sessions Judge in Revision
Application No.49 of 2022 by holding it to be illegal
null and void arbitrary passed in violation of
mandatory provisions of law, without jurisdiction and
is passed by exercising the power beyond the
jurisdiction vested in it by the statue.
(C) Pending admission, hearing and final disposal of this
petition, an interim injunction may kindly be granted
by staying the operation, implementation and
execution of the impugned orders i.e. order dated
09.09.2022 passed by the learned trial Court in
Criminal Misc. Application No.106 of 2022 and the
judgment and order dated 23.09.2022 passed by the
learned District Judge in Revision Application No.49
of 2022.
2. The facts and circumstances giving rise to filing the
present petition are such that the petitioners herein
happen to be paternal grandmother and paternal aunts of
the minor namely, Hussaina whereas the respondent no.2
happens to be the biological mother of the minor Hussaina
who is said to be in the custody of the petitioners since her
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birth. The respondent no.1 herein submitted an application
being Criminal Misc. Application No.106 of 2022 before
learned Second Addl. Judicial Magistrate, Godhra under
Section 97 of the Cr.P.C. The learned Magistrate vide order
dated 09.09.2022 had directed the petitioners to handover
the custody of the minor Hussaina to respondent no.2.
Being aggrieved by the said order, the petitioners
approached the learned Sessions Court, Panchmahal at
Godhra by filing Criminal Revision Application No.49 of
2022 under Section 397 of the Cr.P.C. The learned
Sessions Court vide order dated 23.09.2022 dismissed the
said Revision Application. Being aggrieved by these orders,
the petitioners are before this Court by filing the present
petition. It is pertinent to note that after filing of the
present petition, vide order dated 19.10.2022, the learned
Coordinate Bench had granted ad-interim relief in favour of
the present petitioners. Thereafter, vide order dated
21.02.2023 passed in Criminal Misc. Application No.1 of
2022, the respondent no.2 was granted permission to visit
the minor child on weekly basis on every Sunday. Being
aggrieved by both these orders, the respondent herein had
approached the Hon’ble Apex Court by filing Criminal
Appeal No.2636 and 2637 of 2023. The Hon’ble Apex Court
vide order dated 29.08.2023 while disposing of these
criminal appeals had directed this court to expeditiously
take up the application for vacating ad-interim relief.
Thereafter, vide order dated 23.02.2024, this Court had
directed the petitioners herein to handover the custody of
the child to the respondent no.2 within a period of two
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days, failing which, the concerned jurisdictional Police
Station was directed to comply with the orders of this
Court as well as the order passed by the learned trial
Court. Against the said order, the petitioners again
approached the Hon’ble Apex Court by filing Criminal
Appeal No.1481 of 2024. The Hon’ble Apex Court vide
order dated 11.03.2024 quashed and set aside the order of
this Court dated 23.02.2024 and directed that till the final
disposal of this proceeding, the child would remain with
the petitioners herein. Thus, presently the custody of the
child remains with the petitioners.
3. Learned advocate appearing for the petitioners submitted
that the learned trial Court while dealing with under
Section 97 of the Cr.P.C. has observed that it had no
jurisdiction to decide as to who had a right to hold the
custody of minor Hussaina, however, vide order dated
09.09.2022 had directed the petitioners herein to handover
the custody of the minor to respondent no.2 till the
proceedings under the provisions of Guardians and Wards
Act were finally decided. He submitted that the petitioners
herein happen to be paternal grandmother and paternal
aunts of the minor. The biological mother of the minor i.e.
respondent no.2 herein had abandoned the child when she
was merely 13 days old and since then she is in custody of
the petitioners. The provisions of Section 97 of the Cr.P.C.
would come into play only when a person is illegally
detained. The petitioners herein being the grandmother
and aunts of the minor having the custody of minor since
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she was aged 13 days, they cannot be said to have illegally
detained the minor and therefore, the provision of Section
97 of the Cr.P.C. was not attracted in the present case.
Being aggrieved by the order passed by the learned trial
Court, the petitioners had approached the learned Sessions
Court by filing Revision Application. However, the learned
Sessions Court instead calling for record from the learned
trial Court, went on to decide the Revision Application
against the petitioners by relying upon the provisions of
Mohammeden Law. The learned Sessions Court has also
relied upon the judgment of the Jammu and Kashmir High
Court rendered in the case of Bashir Ahmad Mir vs. Rubin
Akhtar reported in (2011) 20 RCR (Criminal) 561 . The
learned Sessions Court had not drawn the attention of the
petitioners to the said judgment nor they were given any
opportunity to deal with the said judgment. The learned
Sessions Court relied upon various provisions of
Mohammedan Law, more particularly, Section 352 and
came to the conclusion that the custody of the minor with
the petitioners was illegal and therefore, the proceedings
under Section 97 of the Cr.P.C. were maintainable against
the petitioners. He submitted that as per Section 353 of the
Mohammedan Law, the grandmother is a valid guardian
and therefore, custody of the minor with her cannot be said
to be illegal. The learned Sessions Court has not
considered the material facts in proper perspective. He
further submitted that the respondent no.2 herein is a
Bangladeshi Citizen and she is living in India illegally.
Though she is not the citizen of the India, she has illegally
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obtained Adhar Card and other documents. She is not
holding a valid long-term visa to stay in India. He further
submitted that respondent no.2 as per her own affidavit
before the learned trial Court, is earning a meager amount
and therefore, she is not capable of taking care of minor
child. Moreover, being a Bangladeshi citizen living in India
illegally, she is always at the risk of being deported and
under the circumstances, it would not be advisable to hand
over the custody of the minor child to respondent no.2. He
further submitted that being a Bangladeshi citizen, she
was not entitled to any relief under Section 97 of the
Cr.P.C. He, therefore, submitted to allow the present
petition and quash and set aside the orders impugned in
the present petition.
4. Learned Additional Public Prosecutor appearing for the
respondent State has submitted that an appropriate order
may be passed in the present petition.
5. Learned advocate Shri Hitesh Gupta appearing for
respondent no.2 has opposed the petition inter alia
contending that the petition is misconceived and is devoid
of merit. He further submitted that the material fact has
been suppressed by the petitioners from this Court that in
the past, they had filed an application for the custody of
minor under the Guardians and Wards Act. However, the
same was withdrawn. He further submitted that during the
pendency of the application before the learned trial Court
under Section 97 of the Cr.P.C., the petitioners herein had
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given an undertaking to the effect that they will hand over
the custody of the minor child to respondent no.2.
However, despite the aforesaid undertaking being filed by
the petitioners, the custody of the minor child was not
handed over to respondent no.2. This conduct on the part
of the petitioners is also required to be taken note of. He
further submitted that the respondent no.2 is living in
India on a valid long-term visa, and the fact that she is not
an Indian citizen would not deprive her from claiming the
relief under Section 97 of the Cr.P.C. He further submitted
that the respondent no.2 herein being a biological mother
of the minor, as per the settled law, it would be in the
interest of the welfare of the minor, if her custody is
handed over to the biological mother and the learned trial
Court as well as the learned Sessions Court have taken
this aspect into consideration and the custody of the minor
has been handed over to respondent no.2. He further
submitted that the learned Sessions Court as well as the
learned trial Court cannot be said to have committed any
error in passing the orders impugned in the present
petition. The present petition is devoid of merits and
therefore, the same should be dismissed.
6. Heard learned advocates appearing for the respective
parties. Respondent no.2 herein had married to the son of
the petitioner no.1. Out of the said wed lock, respondent
no.2 had given birth to twins out of whom, the son expired
within few days of his birth whereas, the daughter i.e. the
minor in the present case survived. The husband of
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respondent no.2 unfortunately passed away. It is the case
on the part of respondent no.2 that because of the death of
her husband, she was required to follow Iddat and
therefore, she had gone to her paternal house. The
petitioners herein had retained the minor, who was 13
days old at the relevant time. After Iddat period was over,
she time and again requested the petitioners to hand over
the custody of the minor to her however, they did not
handover the custody of the minor. On the contrary, it is
the case on the part of the petitioners that respondent no.2
herein had abandoned the minor child while she was
barely 13 days old and since then, she is in the custody of
the petitioners. In the background of these facts,
respondent no.2 submitted an application under Section
97 of the Cr.P.C. before the learned trial Court. The learned
trial Court referring to the judgments of this Court as well
as the judgments of different other High Courts, came to
the conclusion that he has no jurisdiction to decide as to
who can be the rightful person for holding the custody of
the minor. However, till the issue of custody of the minor is
decided by the court of competent jurisdiction under the
provisions of Guardians and Wards Act, the custody of the
minor was directed to be handed over to respondent no.2
vide order dated 09.09.2022. Being aggrieved by the said
order, the petitioners had approached the learned Sessions
Court by filing Criminal Revision Application No.49 of
2022. The learned Sessions Court in its judgment has
taken into consideration the provisions of Section 352 of
the Mahomedan Law and observed that as per the said
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provisions, up to the age of 7 years, custody of the minor
male child remains with the mother and up to the age of
puberty, custody of the minor female child will remain with
the mother. The learned Sessions Court further took into
consideration the decision of the Jammu and Kashmir
High Court rendered in the case of Bashir Ahmed Mir
(supra) and came to the conclusion that the custody of
minor with the petitioners was illegal and therefore, upheld
the decision of the learned trial Court and dismissed the
Revision Application. In the Revision Application, the
learned Sessions Court was called upon to decide as to
whether the custody of the minor with the petitioners
amounted to illegal confinement. It was required to decide
as to whether the minor was illegally detained by the
petitioners and as to whether the proceedings under
Section 97 of the Cr.P.C. were maintainable in the facts of
the present case. Instead of doing that learned Sessions
Court has decided the issue of entitlement of custody of
minor under the Mahommedan Law and has thus,
dismissed the Revision Application. Learned Sessions
Court has observed as under:-
“ Para 23: For the foregoing reasons, this court is
of the considered opinion that since Muslim Law has
comprehensively empowered the mother who has not
contracted second marriage and who is not apostate or
wicked or opponent failed to prove her unworthiness to
hold custody of minor daughter, she is legally entitled
to hold the custody of minor daughter Husaina, up to
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the age of puberty and any other person holding the
custody of the minor daughter in presence of mother
would be considered as wrongful confinement.”
7. It is pertinent to note that only because the Mahommedan
Law entitles respondent no. 2 to hold the custody of the
minor daughter till she attains the age of puberty, her
custody with the petitioners cannot be termed as an
unlawful confinement. Under the circumstances, the order
passed by the learned Sessions Court is quashed and set
aside and the matter is remanded back to the learned
Sessions Court for reconsideration and fresh decision.
Learned Sessions Court shall decide the matter afresh after
hearing both sides as expeditiously as possible preferably
within a period of six months from the date of receipt of
this order. Till the learned Sessions Court decides the
matter afresh, the interim arrangement enabling
respondent no.2 to visit the minor every day shall
continue.
8. With the aforesaid observations and directions, the present
petition stands allowed. As a sequel, IA stands disposed of.
(M. R. MENGDEY,J)
NABILA
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