The Gujarat High Court has held that a minor girl’s custody with her paternal grandmother and her aunts cannot be termed as an unlawful confinement merely because Mahommedan Law entitles the biological mother to hold the custody of the minor daughter till she attains the age of puberty.

The High Court was considering the petition filed by the paternal grandmother and paternal aunts of a minor girl.

The Single Bench of Justice M. R. Mengdey held, “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.”

Advocate Dhruv R Thakkar represented the Applicant while Advocate Hitesh L Gupta represented the Respondent.

Factual Background

The biological mother of the minor child had preferred an application under Section 97 of the CrPC. The Magistrate had directed the petitioners to handover the custody of the minor to her mother. Being aggrieved by the said order, the petitioners approached the Sessions Court but the Revision Application was dismissed. It was in such circumstances that the petitioners approached the High Court.

Reasoning

On a perusal of the facts of the case, the Bench noted that the couple had twins but the son expired within few days of his birth whereas, the daughter i.e. the minor survived. The father unfortunately passed away. The biological mother claimed 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 retained the minor, who was 13 days old at the relevant time. After the Iddat period was over, she asked the petitioners to hand over the custody of the minor to her; however, they did not hand her over.

The Sessions Court had held that Muslim Law comprehensively empowers the mother who has not contracted a second marriage and who is not apostate or wicked, or an opponent failed to prove her unworthiness to hold custody of the minor daughter. The Sessions Court had held that the mother was legally entitled to hold the custody of the minor daughter. However, the Bench was of the view that the minor’s custody with the grandparents could not be termed as an unlawful confinement.

The Bench thus remanded the matter back to the 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”, it directed.

The Bench concluded the matter by clarifying that the interim arrangement enabling the mother to visit the minor every day would continue till the Sessions Court decides the matter afresh.

Cause Title: A v. State of Gujarat & Anr. (Neutral Citation: 2026:GUJHC:55953)

Appearance

Applicant: Advocates Dhruv R Thakkar, GG Solanki, Jayraj Chauhan, Rahil P. Joshi

Respondent: Advocates Hitesh L Gupta, Nayan L Gupta, Additional Public Prosecutor Krina P. Calla

Click here to read/download Order


Gujarat High CourtJustice M.R Mengdey

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.