'Qatar Doesn't Boast Higher Education Quality Than India': J&K&L High Court Sets Aside Family Court Order Granting Custody To Father

The Court held that the mother's violation of court orders and procurement of duplicate passports, though legally impermissible, would not by itself disentitle her to custody if it is otherwise in the best interests of the children.

The Court was hearing a first appeal challenging the judgment passed by the learned Additional Judge, Family Court, Srinagar, whereby custody of two minor children of the parties was entrusted to the respondent-father. The matter was remanded to this Court by the Supreme Court for reconsideration of certain aspects.

A Bench of Justice Sanjay Dhar, while allowing the appeal, observed,

"It is a fact of common knowledge that Delhi Public School is one of the prestigious institutions in this part of the world... It is not a case where the respondent had admitted the wards in a school located in an advanced country like America or Britain, where the standard of education is definitely higher than the standard of education in India... but it is a case where the elder child of the parties was admitted to a school in Qatar, which may be a wealthy country, but it is definitely not an educational hub of the world and in any case, not a country which can boast of higher standard of education than India. The learned trial court, by presuming that education standard at Qatar is higher than the education standard in Kashmir, it seems, has got swayed away by the petrodollar wealth of State of Qatar."

The Court further observed,

"The respondent has obtained his academic and professional education in Srinagar, which enabled him to get a prestigious job in a country like Qatar and it is only because of the standard of education which we have in Kashmir that he has been able to make a mark at an international level. So, the contention of the respondent that the standard of education in Qatar is in any way better than the standard of education in Kashmir is wholly fallacious and without any material to support."

Mr. Altaf Naik, Senior Advocate with Mr. Shabir Ahmad Najar and Ms. Seerat appeared for the appellant, while Mr. Altaf Haqani, Senior Advocate with Mr. Shakir Haqani and Mr. Asif Wani appeared for the respondent.

Background:

In the instant case the parties married in Srinagar in 2015 and thereafter settled in Qatar, where their two sons were born. Their marriage was dissolved by the Qatar Family Court in March 2022, which awarded custody of the children to the mother.

After she brought the children to Kashmir, proceedings initiated by the father before this Court were settled on her undertaking to return to Qatar. However, she returned to India with the children shortly thereafter, leading the father to invoke Section 25 of the Guardian and Wards Act, pursuant to which the trial court directed that custody be handed over to him.

Court's Observation:

The High Court examined the legal position regarding custody under Mohammedan law, noting that the mother is entitled to "Hizanat" (custody) of her male child until he has completed the age of seven years, and this right continues though she is divorced unless she marries a second husband. The Court observed, "The right of mother to have custody of minor children cannot be taken away from her except on account of her own misconduct or her remarriage."

On the aspect of the mother's conduct in relocating children from Qatar to India, the Court noted that the Qatar Court had clearly held that the mother was entitled to custody on merits, and allegations of psychological illness were unsubstantiated. The Court observed,

"Merely on the basis of violation of a condition imposed by the court at Qatar for not relocating the children out of Qatar would not affect or alter the superior claim of the mother to have the custody of minor children, which has been vindicated on merits by judgment delivered by the court at Qatar."

On financial capacity and standard of living, the Court observed,

"Greater economic prosperity of the father is not a guarantee of the welfare of a minor and it does not disturb the presumption in favour of the mother while deciding custody. So, merely because the respondent father earns a handsome income, does not ipso facto make him more suitable person to hold custody of the minor children."

Regarding education, the Court noted that the appellant had managed admission of the children in Delhi Public School, Budgam, a prestigious institution. The Court observed,

"It is not a case where the respondent had admitted the wards in a school located in an advanced country like America or Britain, where the standard of education is definitely higher than the standard of education in India... but it is a case where the elder child of the parties was admitted to a school in Qatar, which may be a wealthy country, but it is definitely not an educational hub of the world and in any case, not a country which can boast of higher standard of education than India."

Upon interaction with the children, the Court observed that the elder child was not comfortable with the idea of studying at Qatar again. The Court observed,

"From the interaction of the Court with the children, it does appear that they have settled down with the atmosphere in Kashmir and that they are feeling comfortable in the school in which they are studying at present. While both the children are deeply in love with their father but they are not comfortable with the idea of leaving their mother and staying with their father.

Upon considering several other aspects apart from the above factors the court allowed the appeal, set aside the trial court's judgment, and dismissed the petition filed by the respondent father under Section 25 of the Guardian and Wards Act. The Court directed that custody of the minor children would continue with the appellant mother, while making arrangements for the respondent's visitation rights.

Case Title: Sana Aftab v. Mohtashem Billah Malik

Citation: 2026 LiveLaw (JKL) 326

Appearances

Appellant: Mr. Altaf Naik, Sr. Advocate; Mr. Shabir Ahmad Najar, Advocate; Ms. Seerat, Advocate

Respondent: Mr. Altaf Haqani, Sr. Advocate; Mr. Shakir Haqani, Advocate; Mr. Asif Wani, Advocate

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