05, Apr 2024 | Md Zeeshan Ahmad

Legal certainty is one of the cardinal guarantors of the rule of law. However, when judgments end up losing sight of legal certainty, and infirmities and inconsistencies creep into jurisprudence set by constitutional courts — either by way of framing of issues or through analysis—it is the rule of law that gets undermined. The evolving jurisprudence of child’s custody, in cases where both the parties are Muslims is one such domain wherein one can witness such glaring legal uncertainty. 

On March 4, 2024, the Supreme Court in Shazia Aman Khan & Ors vs The State of Orissa & Others (hereinafter ‘Shazia’) while setting aside an order passed by the Orissa High Court altering the custody of a minor girl child observed that “she cannot be treated as a chattel at the age of 14 years”. This is a very important and much needed judgment in terms of setting the record straight on jurisprudence on custody between Muslim parties in India. 

In Shazia, the Supreme Court essentially made two important points. Firstly, unlike the Orissa High Court which observed that “in absence of adoption, the custody of the minor child is liable to be termed as illegal detention”, the Supreme Court did not just make the fine distinction between adoption, custody, and guardianship, but also noted that the three concepts (or definitions) are neither same nor interchangeable. 

Secondly, in matters of custody, besides welfare, the Apex Court underscored, “Stability of the child is also of paramount consideration”. These two observations by the Apex Court, significantly, didn’t just further the principles of natural justice, but are also in conformity with the mandate of and jurisprudence under the Guardians and Wards Act, 1890. The glaring error that the Supreme Court identified in the High Court order, might have occurred on two counts. This could be either due to a misreading of these legal concepts (adoption, custody and guardianship) and their relationship to the stance of the Muslim Personal Law Board (MPLB) or may have been rendered in sheer haste in keenly framing the issue. 

Instead of framing the issue in the case on hand as one that had to determine custody, the High Court ventured into the unchartered territory of determining adoption, which is not permissible in the existing misinterpretation of Islamic law. Else, how would we read the historical case of the adoption of a boy by the Prophet –wherein the custody remained with the Prophet in accordance with the wish of the eight-year-old child? The relevant Quranic verse(s) does not prohibit adoption per se. It only prohibits erasure of the biological paternity of the child.

In light of the above proposition, I would like to state that the practice of either substituting adoption with custody or framing the issue as one of custody in the language of adoption to unsettle custody –often committed by the Indian judiciary– has wreaked havoc in the lives of families. 

Though, in Shazia, specific judges of the Apex Court- a polyvocal court– identified the issues and dealt with them accordingly. However, every case (and parties) is not as fortunate as those in the case of Shazia. I will come to the havoc component triggered by unsettling the custody of children in subsequent section by analysing –again–a custody judgment of 2022. . 

Before moving forward, the following crucial facts of Shazia need to be re-capped to put things in perspective:

With mutual consent, the biological mother had given away her three month’ old baby girl (born in 2010, in Ranchi) to her own sister. After a few years, a series of police complaints and financial blackmailing of the foster parents by the biological parents followed. Surveying the facts of the cases of custody suggests that there is almost a pattern. In April 2023, the Orissa High Court ruled that the 13-year-old girl should be dislocated, de-stabilized and notwithstanding the psychological trauma the girl would undergo, should “be returned back to the biological parents”. 

This was challenged in the Supreme Court, where the HC order was stayed in June 2023. Subsequently, the Supreme Court on March 4, 2024 gave its 19-page verdict setting aside the HC order. The verdict records that the Supreme Court had interacted with the child on December 12, 2023, and “found the child to be quite intelligent, who could understand her welfare” (Para 17, Page 17). Further, noted the Apex Court, “We find that the welfare of the child lies with her custody (being) with the [foster parents]. This is coupled with the fact that even she also wishes to live there. Keeping in view her age at present, she is capable of forming an opinion in that regard. She was quite categorical in that regard when we interacted with her.” 

On March 4, 2024, the Supreme Court did set aside this particular order of the Orissa High Court order, arguing how unsettling the alteration of custody of the child would be and not serve the child’s welfare. The same Supreme Court, however, in an almost identical case, on October 17, 2022, had refused to interfere with the Allahabad High Court order of September 21, 2022, that had inalienably altered custody.

The Supreme Court had stated that the court found no reason to interfere, and dislocated and de-stabilised the almost nine-year-old girl. In fact, in compassion to the Orissa case, the UP case had an added point in its favour given the fact that the trial court had not de-stabilised the girl’s custody. The trial court, on May 25, 2022, had interacted with the girl (over 8 years of age) and had written a five-page observation on the issue, noting the responses of the girl to the judge’s questions. Yet, neither the High Court nor the Supreme Court felt it necessary (then, in 2022) to interview the baby and assess her, before pronouncing its verdict. A comprehensive critiques of the verdict have been done in two columns, in Citizens for Justice and Peace (March 2, 2023), (where one can read the entire texts of the verdicts of the trial court as well as of the Allahabad High Court), and also in OutlookIndia.Com, January 19, 2023.  

What comes out of the Allahabad HC verdict dated 21 Sept 2022 is that there was possibly an intellectual laziness on the part of the judiciary which didn’t labour or pursue the matter to make a distinction between adoption, custody and guardianship, which the Apex Court does in Shazia. The judiciary also refused to make itself aware about: (a) the historical fact that the Prophet’s adopted son continued to remain in his custody; (b) Quranic prohibition is against erasure of biological paternity, not against the adoption, per se. 

Besides legal inconsistency in the application of jurisprudence and the failure on the part of the higher judiciary to differentiate between adoption, custody and guardianship, is there any other elephant in the room which obstructs or stymies the objective of paramount welfare of the children as incorporated in the Guardians and Wards Act, 1890? Shedding light on the politics of All India Muslim Personal Law Board (founded in April 1973) in relation to custody in particular and to the issue of Muslim Personal Laws in general shall help us understand the question posed. 

Law portals such LiveLaw and Bar and Bench reported the Shazia judgment prominently on March 5, 2024. The Times of India reported it on March 7, 2024. However, the “Muslim-identity-driven” portals such as Clarionindia.net, Indiatomorrow.net, Muslimmirror.com, Maktoobmedia.com, etc., did not carry any news on this verdict. 

After all, the All India Muslim Personal Law Board (AIMPLB), owes its foundation in (Hyderabad, April 1973), to the Muslim agitations against the Indira Gandhi led government which had amended some of the laws. These had to do more with Hindu laws. Even then, Muslims protested against these, assuming that the amendments tinkered with the Muslim Personal Law, particularly those pertaining to adoption of a child. 

A convention was held in Bombay on December 27, 1972, at which they decided to form the AIMPLB. In 1986 too, it was these Muslim agitators that had succeeded in nullifying the Supreme Court verdict of April 23, 1985 (the famed Shah Bano case), through Parliamentary legislation. Even in 2017-2018, to retain the un-Quranic Instant Triple Talaq (ITT), the AIMPLB and other such theological bodies dedicated to save the Shariah had launched various kinds of agitations such as Deen Bachao-Desh Bachao Rally in Patna (April 15, 2018) and across the country (see Rediff.Com columns, July 12, 2018; April 21, 2018; April 15, 2018; March 15, 2018; and The Wire. In columns, dated, March 29, 2018; February 12, 2018).

One therefore wonders why those sections of Indian Muslims and their leadership are, unlike what they did in 1972 and in 1985, refraining from resorting to street demonstrations, now (2024), when the Supreme Court has ruled in favour of the custody with the foster parents. 

Have they, by now, become less conservative on the Shariat issues? Do they fear the current dispensation? Or have they really come to understand the distinction between adoption, custody and guardianship?  

It is a generally held view that the Muslim Personal Law prohibits adoption. However, reality is, as said above: Quranic prohibition is only against erasure of biological paternity of the adopted child. Custody is quite well settled in favour of the child’s wish. The Prophet Muhammad had adopted a son, Zayd. Based on his wish, his custody continued with the Prophet. But this is an interpretation not clarified in the Shariat Acts of 1937 and 1939, and this is an opinion not adequately popularised.

Recent lower court orders (latestlaws.com, February 05, 2024) on succession/inheritance have disregarded the Shariat Act 1937. For instance, a lower court of Delhi, in its order on February 3, 2024 said that a son adopted by a Muslim couple would inherit 100% of the assets of the foster parents; any individual belonging to the Muslim community can adopt a child without making a declaration under the Shariat Act.”

As per this ruling, any such adoption shall be governed by the general law and not by the Muslim Personal Law. The said child would become the legitimate child of his adoptive parents”, the court said. In another instance of March 2023, Sheena Shukkur, 51, an academic and head of the law department at Kannur University, and her lawyer husband C. Shukkur, 53, registered their marriage under the Special Marriages Act at the sub-registrar’s office in Hosdurg in Kerala’s Kasaragod district in the presence of their family, friends and three daughters. This was “to ensure that their three daughters automatically inherit their assets in entirety, which would not have been possible under the Muslim personal law” (The Telegraph, March 9, 2023). The couple has got no son.

The Supreme Court verdict dated March 4, 2024 however, in a way, still accepts the supremacy of the existing interpretation of Mohammedan law. My submission is that the Supreme Court must point out the deep flaws by way of clarification in the Muslim Personal law, viz.,

1. Quran doesn’t prohibit “adoption” per se. What it prohibits is the erasure of biological paternity, means, the baby must know the biological paternity);
2. Custody is very much established. Zayd [Zaid] continued in the Prophet’s custody even after the so-called prohibition of “adoption”. Yet, the AIMPLB refuses to reform along these lines;
3. The Courts must take a position after questioning the biological parents on the fact that, if they are going by personal law, why did you give away your baby? Once this act was done, the implication is that they intended to be regulated by secular law.
4. On the above three points of law, even the legal researchers and academics are silent or ambivalent. Students of the law are rarely taught about such misinterpretations and juridical inconsistencies.
5. Why, does it often happen that it is after five-six years of such an act (handing over of the child) does such obvious blackmailing & litigation begin? No court ever holds the biological parents accountable for such blackmailing.

Against this backdrop, a fresh reading of the Allahabad High Court judgment of September 2022 which was later upheld by the Apex Court in October 2022 may be in order. In light of the judgment in Shazia of March 2024, it can be strongly argued that the Supreme Court must re-consider its decision dated October 2022, even suo moto by perhaps by invoking Article 142 of the Constitution of India. This would involve a re-look at its 2022 order in view of the differentiation provided in Shazia between adoption, custody, and guardianship. That the child was not interviewed by the Apex Court is another very strong reason to look into its October 2022 judgment. Doing so, I firmly believe, would not just help in the realization of complete justice, but will also align this unfortunate blot with the extant jurisprudence. 

Image: Representational Image

(The author is presently pursuing LLM at SOAS, University of London as Marang Gomke Scholar)

Related:

Where the doctrine of parens patraie was invoked to unsettle custody: Adoption