The Supreme Court has set aside a judgment of the Jammu & Kashmir and Ladakh High Court that restored the custody of two minor children to their mother, holding that the High Court failed to consider crucial factors such as violation of court undertakings, revocation of custody by a foreign court, and the overall impact of parental conduct on the welfare of the children. The matter has been remanded to the High Court for fresh consideration on merits.
A Bench of Justices Pankaj Mithal and S.V.N. Bhatti disagreed with the High Court’s approach. While reaffirming that the welfare of the child is paramount in custody matters, the Court held that welfare cannot be assessed in isolation and must take into account a range of relevant factors, including Conduct of the parents, Compliance with court orders and undertakings, and Educational continuity and stability of the children, Existing foreign court orders affecting custody and guardianship .
Background of the Dispute
The case arises from a cross-border custody dispute between an Indian couple married in 2015 under Muslim Personal Law. Both parents lived in Qatar after marriage, where their two sons were born in 2017 and 2019. Matrimonial discord led to divorce proceedings before the Qatar Family Court, which granted judicial divorce in March 2022. While custody of the children was granted to the mother, guardianship remained with the father, and the children’s passports were ordered to remain with him.
Despite this arrangement, the mother travelled to India in August 2022 with the children, allegedly without the father’s consent, without original passports, and without permission from the Qatar courts. This prompted the father to file habeas corpus proceedings before the Jammu & Kashmir High Court, alleging illegal custody.
Undertaking to Court and Subsequent Contempt
During appellate proceedings, the mother undertook before the High Court that she would return to Qatar with the children before the reopening of the elder child’s school in January 2023. The appeal was disposed of based on this undertaking. However, the mother failed to comply, travelling alone to Qatar while leaving the children behind in India.
This led to contempt proceedings, in which the High Court found the mother guilty of violating her undertaking and imposed a token fine, while restoring the appeal for adjudication on merits.
Foreign Court Revokes Custody
Meanwhile, the father approached the Qatar court seeking revocation of custody. In October 2023, the Qatar court revoked the custody earlier granted to the mother, citing her misconduct in removing the children from its jurisdiction without consent or permission, and ordered that custody be given to the father .
Conflicting Orders of Family Court and High Court
In January 2025, the Family Court at Srinagar granted custody of the minors to the father under the Guardians and Wards Act, 1890. This order was reversed by the High Court in September 2025, which restored custody to the mother, holding that factors such as parental conduct, income, and standard of living were irrelevant, and that the sole consideration was the welfare of the children.
The Court noted that the High Court failed to appreciate the significance of the mother removing the children mid-academic session, allegedly keeping them out of formal schooling for a substantial period, and procuring travel documents without the father’s consent. It also found that the High Court ignored the legal impact of the Qatar court’s order revoking custody and the contempt finding against the mother.
The Supreme Court also observed that material on record, including mediation reports and Family Court findings, indicated that the children had expressed a preference to live with their father and showed discomfort with their surroundings in Srinagar. While such preferences may not be decisive on their own, the Court held that they were relevant factors that could not have been brushed aside entirely.
Holding that the High Court’s judgment could not be sustained in law, the Supreme Court set aside the impugned order and remanded the matter to the High Court for reconsideration on merits. The Court directed that the matter be decided expeditiously, preferably within four months from the date of receipt of the certified copy of its order
Case Details
Case Title: Mohtashem Billah Malik Versus Sana Aftab
Case No.: S.L.P. (C) No.28934 of 2025
Date: 04/02/2026
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