Shaifiya Vajiuddin Contractor & Ors. v. State of Gujarat & Anr., 2026
Custody entitlement and unlawful confinement are distinct legal questions.
Judgement Details
Court
Gujarat High Court
Date of Decision
17 September 2026
Judges
Justice M. R. Mengdey
Citation
Acts / Provisions
Facts of the Case
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The dispute concerned the custody of a minor girl.
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The petitioners were the child's paternal grandmother and paternal aunts.
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Respondent No. 2 was the minor's biological mother.
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The minor was in the custody of the paternal family.
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The mother approached the Magistrate under Section 97 CrPC, alleging wrongful confinement of the minor.
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On 9 September 2022, the Magistrate directed the petitioners to hand over custody of the child to the mother.
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The petitioners challenged the order before the Sessions Court.
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On 23 September 2022, the Sessions Court dismissed their challenge.
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The petitioners thereafter approached the Gujarat High Court.
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A coordinate Bench granted interim relief to the petitioners.
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Subsequently, an arrangement permitted the mother to visit the child.
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The mother approached the Supreme Court in relation to the interim proceedings.
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On 23 February 2024, the High Court directed the petitioners to hand over the child to the mother within two days, failing which the jurisdictional police were directed to assist in implementing the order.
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The petitioners again approached the Supreme Court.
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On 11 March 2024, the Supreme Court set aside the High Court's interim direction and directed that the child remain with the petitioners until final disposal of the proceedings.
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The Supreme Court did not express any opinion on the merits of the custody dispute.
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The Sessions Court had relied upon Section 352 of Mahomedan Law and observed that the mother was entitled to custody of the minor daughter until she attained puberty.
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The High Court found that the Sessions Court had focused on the mother's entitlement to custody, rather than determining whether custody with the petitioners actually amounted to wrongful confinement under Section 97 CrPC.
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The High Court therefore examined the distinction between custody rights under personal law and unlawful confinement under criminal procedure.
Issues
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Whether custody of the minor with her paternal grandmother and paternal aunts, despite the mother's custody entitlement under Mahomedan Law, amounts to unlawful confinement under Section 97 CrPC?
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Whether the Sessions Court was justified in deciding the mother's substantive custody entitlement instead of examining whether the requirements of Section 97 CrPC were satisfied?
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Whether the mother's right to custody under Section 352 of Mahomedan Law automatically makes custody of the minor with the paternal relatives unlawful?
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Whether proceedings under Section 97 CrPC are maintainable merely because another person claims a superior right to custody of a minor?
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Whether the Sessions Court's order required to be quashed and the matter remanded for fresh consideration?
Judgement
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The Gujarat High Court allowed the petition.
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The Court quashed and set aside the Sessions Court's order.
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The Court held that the Sessions Court had approached the matter from an incorrect legal perspective.
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The Sessions Court was required to determine whether the minor's custody with the petitioners constituted wrongful or unlawful confinement within the meaning of Section 97 CrPC.
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Instead, the Sessions Court primarily examined the mother's custody entitlement under Mahomedan Law.
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The High Court clarified that merely because Mahomedan Law gives the mother a right to custody of her minor daughter until puberty, it does not automatically mean that custody with the paternal relatives amounts to unlawful confinement.
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The Court therefore distinguished between entitlement to custody and illegal confinement.
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The Sessions Court's order was consequently set aside.
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The matter was remanded to the Sessions Court for reconsideration and a fresh decision.
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The Sessions Court was directed to hear both sides and decide the matter as expeditiously as possible, preferably within six months.
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Until the fresh decision, the existing interim arrangement permitting the mother to visit the minor was directed to continue.
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The High Court did not finally determine the ultimate custody rights of either side.
Held
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A mother's right to custody under Mahomedan Law does not by itself establish that custody of the child with paternal relatives amounts to unlawful confinement.
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Section 97 CrPC requires an examination of wrongful confinement, not merely competing custody claims.
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The Sessions Court erred by deciding primarily the issue of who was entitled to custody under personal law.
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A custody right under personal law cannot automatically be equated with illegal confinement.
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The matter therefore required fresh consideration by the Sessions Court.
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The High Court did not finally award custody to either the mother or the paternal relatives.
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The interim arrangement allowing the mother to visit the child was continued until the Sessions Court decides the matter afresh.
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The Sessions Court was directed to decide the matter preferably within six months.
Analysis
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The judgment establishes an important distinction between custody rights and wrongful confinement proceedings.
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A person may have a legal claim to custody, but that does not automatically mean that the child is being unlawfully confined by another relative.
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The Court emphasised that proceedings under Section 97 CrPC must satisfy the specific requirements of the provision.
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The provision cannot simply be used as a mechanism for deciding competing claims of custody under personal law.
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Mahomedan Law may determine entitlement to custody, but that question is separate from whether the circumstances constitute wrongful confinement under Section 97 CrPC.
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The High Court therefore found that the Sessions Court had addressed the wrong legal question.
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The judgment does not declare that the paternal relatives have a superior custody right over the mother.
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Similarly, it does not finally reject the mother's claim to custody.
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Instead, it requires the Sessions Court to examine the matter afresh and in accordance with law.
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The decision also demonstrates the importance of maintaining the distinction between an interim custody arrangement and a final determination of custody rights.
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The Supreme Court's earlier order had similarly directed that the child remain with the petitioners during the proceedings without expressing any view on the merits.
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The case therefore illustrates that a substantive custody entitlement cannot automatically establish the ingredients of a separate procedural remedy for wrongful confinement.
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The ultimate question of custody remains open for determination by the competent court.