The Court observed that the background and compelling circumstances in which such actions were taken require serious consideration, and that revocation of custody orders on technical grounds does not obliterate the finding that the mother is best suited to have custody.

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

A Bench of Justice Sanjay Dhar, while allowing the appeal and setting aside the trial court's judgment, 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."

The Court further observed,

"This Court is of the considered opinion that having regard to the facts and circumstances under which she was compelled to take such extreme step... the finding of the Qatar court that she was best suited to hold the custody of the minor children would not get obliterated and her such conduct would not by itself disentitle her from holding the custody of the minor children, if otherwise, it is in best interests of their welfare."

In the instant case the parties were married in Srinagar and thereafter moved to Qatar, where the respondent Husband was working as an Electrical Engineer. They have two sons. Due to marital discord, their marriage was dissolved by the Qatar Family Court, which granted physical custody of the children to the mother. The appellant then returned to Kashmir with the children.

The respondent challenged her custody before this Court, alleging that the children had been taken away unlawfully. During the proceedings, the appellant Wife agreed to return to Qatar, but after briefly travelling there, she brought the children back to India, leading to further contempt and custody proceedings.

The respondent subsequently sought custody of the children under Section 25 of the Guardians and Wards Act, claiming that the appellant had disrupted their education by removing them from a reputed school in Qatar and exposing them to an unfamiliar environment. He also alleged that she had violated her undertaking given before the Court.

The appellant, however, alleged that she had left Qatar because of harassment by the respondent and stated that the children were studying at Delhi Public School, Budgam. The trial court ultimately granted custody to the respondent. Although the High Court initially set aside that order, the Supreme Court later remanded the matter for reconsideration of certain issues.

Court's Observation:

The 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. Thus, even after the completion of age of seven years, a mother can have the custody of minor children provided she has not remarried or she has not indulged in a conduct which has made her unfit for continuing with the custody of the minor children."

The Court relied upon Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840, observing that the dominant consideration in making orders under Section 25 is the welfare of the minor children, and in considering this question, due regard has to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor's welfare.

The Court also relied upon Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413, which held that in selecting a guardian, the court is exercising parens patriae jurisdiction and is expected to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.

Addressing the aspect of the appellant'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,

"It is true that the appellant removed the children from the State of Qatar and relocated them to India by procuring duplicate passports of the children, which ultimately resulted in revocation of custody order in her favour by the orders of court at Qatar later on but if we have a look at the judgment of the Qatar court... it has been clearly held by the court at Qatar that conditions of custody in favour of the mother have been met and the objections of the respondent father are devoid of any evidence."

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 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."

The Court also noted that the respondent, who obtained his education in Srinagar, got a prestigious job in Qatar, and observed,

"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."

On the children's preference, the Court interacted with both children for about 40 minutes and observed that while the younger child appeared more inclined towards his father, he categorically stated that he cannot live with his father in the absence of his mother. The elder child stated that he has now settled down in Kashmir and made friends in school, and 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."

Significantly, the Court appreciated the conduct of the appellant mother, observing,

"In an acrimonious marital discord between the spouses, which ends in a divorce, normally the parent who is in custody of the minor children, tutors and poisons the minds of the minor children against the other parent... However, in the instant case, throughout the proceedings, this Court has noted that the appellant mother has never tutored or poisoned the minor children against their father. Whenever she was asked to hand over the temporary custody of the minor children to their father, without any order of the Court, she volunteered to hand over the custody to the father. The credit goes to the lady that she has not allowed the minor children to get distanced from their father, either emotionally or physically. This conduct of the appellant mother needs to be appreciated and it becomes a determinative factor for deciding this custody battle."

The Court also noted that the respondent's offer to pay Rs. 25 lakhs if children are relocated was conditional, observing,

"A father is not expected to make offers for maintaining his children on conditions. The love of a father towards his minor children has to be unconditional and unqualified, which unfortunately the respondent father has not exhibited from his conduct."

In consonance with the above observations the court allowed the appeal, set aside the impugned judgment of the trial court, 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 and temporary custody.

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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