The Supreme Court, prioritizing the child’s well-being over that of her biological parents, issued a stay order on Friday, suspending a ruling by the Orissa High Court. The high court had previously directed the transfer of custody of a 12-year-old girl from her adoptive parents to her biological parents. This order was made in response to a habeas corpus petition filed by the girl’s biological father, Nesar Ahmed Khan, who accused his elder sister of kidnapping his daughter in 2015 from Rourkela, where he currently resides.
The Orissa High Court, in its ruling on April 3, had instructed Ahmed Khan’s elder sister, Shahnaz Khanam, and her husband (the adoptive parents) to relinquish custody of the child by June 30. Failure to comply would result in a formal order for the child’s custody to be transferred to her biological parents. A vacation bench of Supreme Court justices BV Nagarathna and Manoj Misra issued an interim order staying the high court’s directive and scheduled a hearing for Shahnaz Khanam’s appeal on July 28.
The Supreme Court stated, “Until further orders, the petitioner is not obligated to surrender custody of the child, Dania Aman Khan alias Sumaiya Khanam, to respondent 2 (biological father),” thereby granting an interim stay on the Orissa High Court’s direction.
During the interim order, the Supreme Court acknowledged the unique circumstances of the case, as the girl had grown up with her aunt’s family and had considered it her home, never recognizing her biological parents as her real parents. Sumaiya, born in Ranchi in February 2010, had a twin sister. The petition filed with the Supreme Court claimed that due to the limited financial means of the biological parents to raise both daughters, the child’s father had informally consented to the child being raised by his sister.
Highlighting the potential adverse impact on the child, the Supreme Court bench remarked, “You have to see this case from the child’s point of view. She will be displaced from a familiar environment, a familiar school, and taken away to strangers.” The high court order noted that the child did not recognize her biological parents, and even her school records listed her aunt and her husband as her parents.
Shahnaz’s advocate, Shahrukh Alam, argued that the Orissa High Court’s order would emotionally disrupt the child, as she had been under her aunt’s care and had received proper education in Patna. The advocate further mentioned that a petition under the Guardian and Wards Act of 1890 had been filed before a Patna family court in 2016, but the case had made no progress over the years.
The child’s biological father, represented by advocate Sagarika Sahoo, argued in the top court that adoption was not recognized under the Mohammedan law of the Muslim Personal Law (Shariat) Application Act of 1937. Sahoo contended that even under the principles of Mohammedan law, the father could claim guardianship of an unmarried daughter who had reached puberty.
Regarding claiming guardianship under the Guardian and Wards Act, Sahoo explained that Section 19 of the 1890 Act stated that a family court could not appoint a guardian for a minor whose father or mother was alive and not unfit to be the guardian of the minor.
In 2015, the child’s father filed a criminal case alleging that his daughter had been kidnapped by his sister. The Odisha police investigated and found the adoptive parents’ house in Patna locked. Subsequently, the case was closed as the police concluded that the father had consented to the adoption of the girl by his sister’s family.
