Gujarat High Court says a mother’s custody preference under Muslim law alone does not make a child’s custody with relatives “unlawful confinement”

The petitioners, the minor Hussaina’s paternal grandmother and paternal aunts, claimed that the child had remained in their custody since she was 13 days old, asserting that the respondent mother had abandoned her.

The respondent mother disputed this and stated that, after her husband’s death and the completion of her iddat period, the petitioners had wrongfully retained the child and refused to return her custody.

She therefore filed Criminal Misc. Application No. 106 of 2022 under Section 97 of the Code of Criminal Procedure, 1973 (“CrPC”).

The Magistrate directed the petitioners to hand over the minor’s custody to the mother until the competent court decided the custody issue under the Guardians and Wards Act.

The Sessions Court dismissed the petitioners’ revision and held, principally by applying Muslim personal law, that the mother was entitled to the custody of her minor daughter and that custody with another person amounted to wrongful confinement.

During the pendency of the High Court proceedings, interim orders concerning the child’s custody and the mother’s visitation were passed; the Supreme Court ultimately directed that the child remain with the petitioners until final disposal of the High Court proceedings.

Whether the petitioners’ custody of the minor, in the circumstances of the case, constituted “wrongful confinement” or illegal detention so as to attract Section 97 CrPC.

Whether the Sessions Court, while exercising revisional jurisdiction, could determine the mother’s substantive entitlement to custody under Muslim personal law instead of examining the limited question of illegal detention under Section 97 CrPC.

Whether the Sessions Court’s order required interference and remand for fresh consideration.

Section 97 CrPC empowers a Magistrate to issue a search warrant where a person is suspected to be wrongfully confined, but the provision is directed at unlawful detention and does not by itself confer jurisdiction to finally determine competing custodial or guardianship rights.

The court considered the principles of Muslim personal law, particularly Sections 352 and 353, under which the mother may have preferential rights of hizanat (custody) in specified circumstances; however, a person’s legal entitlement to seek custody does not automatically render another person’s existing custody “unlawful confinement.”

The court also considered the decision in Bashir Ahmad Mir v. Rubin Akhtar, relied upon by the Sessions Court, but held that the relevant inquiry under Section 97 CrPC remained whether the minor was illegally detained.

The High Court held that the Sessions Court had failed to address the actual issue arising in the Section 97 proceedings—whether the minor was illegally detained by the petitioners.

Instead, it determined the mother’s entitlement to custody by applying Muslim personal law and concluded that any custody of the minor with the petitioners was wrongful confinement.

The High Court drew a distinction between a mother’s preferential or substantive custody right and the distinct jurisdictional requirement of unlawful detention under Section 97 CrPC.

Even assuming that Muslim law entitled the mother to custody of her minor daughter until puberty, that entitlement alone could not establish that the petitioners’ custody, which they claimed had existed since the child was 13 days old, amounted to illegal confinement.

The revisional court therefore decided an issue of custody and guardianship beyond the proper scope of the Section 97 inquiry and without adequately determining whether the statutory condition of wrongful confinement was satisfied.

The High Court allowed the petition and quashed and set aside the Sessions Court’s revisional order.

The matter was remanded to the Sessions Court for reconsideration and a fresh decision after hearing both parties, preferably within six months of receipt of the High Court’s order.

The interim arrangement permitting the respondent mother to visit the minor every day was directed to continue until the Sessions Court rendered its fresh decision.