The Gujarat High Court has set aside a Sessions Court order that upheld handing over the custody of a minor girl to her biological mother under proceedings initiated under Section 97 of the Code of Criminal Procedure (CrPC). The High Court held that merely because Muslim law recognised the mother’s entitlement to custody, the child’s custody with her paternal grandmother and aunts could not automatically be treated as unlawful confinement.
Justice M. R. Mengdey delivered the judgment on September 1, 2026, in Shaifiya Vajiuddin Contractor & Ors. v. State of Gujarat & Anr., Special Criminal Application (Quashing) No. 10949 of 2022.
Background
The petitioners were the paternal grandmother and paternal aunts of the minor girl. According to the petitioners, the child had remained in their custody since she was 13 days old. The biological mother, respondent no. 2, maintained that the child had been retained by the petitioners after she went to her parental home following the death of her husband.
The mother approached the Magistrate under Section 97 CrPC seeking the child’s production. On September 9, 2022, the Magistrate directed the petitioners to hand over custody to her until the custody issue was decided by a competent court under the Guardians and Wards Act.
The petitioners challenged that order before the Sessions Court, but their revision was dismissed on September 23, 2022. The Sessions Court relied upon provisions of Mahomedan Law concerning custody of a minor daughter and held that custody with another person in the mother’s presence would amount to wrongful confinement.
Justice Mengdey found that the Sessions Court had addressed the question of entitlement to custody instead of determining the specific issue arising under Section 97 CrPC—whether the minor was illegally detained and whether proceedings under that provision were maintainable.
The High Court observed:
“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.”
The Court therefore held that the Sessions Court’s approach required reconsideration.
The Gujarat High Court quashed and set aside the Sessions Court’s order and remanded the matter for fresh consideration. The Sessions Court was directed to hear both sides and decide the matter afresh, preferably within six months from receiving the High Court’s order.
Until that fresh decision, the existing interim arrangement allowing the biological mother to visit the minor every day was directed to continue.
The petition was accordingly allowed.
Case Details:
Case Title: Shaifiya Vajiuddin Contractor & Ors. v. State of Gujarat & Anr.
Case Number: R/Special Criminal Application (Quashing) No. 10949 of 2022
Judge: Justice M. R. Mengdey
Decision Date: September 1, 2026
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