The Supreme Court of India has set aside a judgment of the High Court of Jammu & Kashmir and Ladakh that had granted the custody of two minor children to the mother. The Apex Court has remanded the matter back to the High Court for reconsideration, observing that the High Court failed to consider crucial factors beyond the abstract welfare of the child, such as the conduct of the parents, the disruption to the children’s education, and their living conditions, alongside the mother’s violation of court undertakings.
The Bench, comprising Justice Pankaj Mithal and Justice S.V.N. Bhatti, delivered the judgment in Mohtashem Billah Malik v. Sana Aftab (Civil Appeal No. of 2026), directing the High Court to decide the matter expeditiously, preferably within four months.
Background of the Dispute
The appeal arose from a matrimonial dispute between the appellant-husband and the respondent-wife, both well-educated Indian citizens who were married in Srinagar in 2015 and subsequently resided in Qatar. Two sons, Malik Karim Billah (born 2017) and Malik Rahim Billah (born 2019), were born out of the wedlock.
Following matrimonial discord, the Family Court at Qatar granted a decree of judicial divorce on March 29, 2022. The Qatar Court initially gave custody of the minors to the mother, while guardianship and custody of passports remained with the father.
The dispute escalated when the respondent-wife travelled to India on August 17/18, 2022, allegedly procuring fresh passports for the children and removing them from Qatar without the father’s consent. The appellant-husband filed a Habeas Corpus petition in the High Court of J&K and Ladakh. This led to a Letters Patent Appeal (LPA) which was disposed of on December 1, 2022, based on the mother’s undertaking that she would return to Qatar before the children’s school reopened in January 2023.
However, the respondent-wife violated this undertaking. Consequently:
- Qatar Court Action: On October 31, 2023, the Qatar Court revoked the mother’s custody due to the removal of minors from its jurisdiction and granted custody to the father.
- Contempt Proceedings: The J&K High Court held the wife guilty of contempt on August 6, 2024, for violating her undertaking.
The appellant-husband then initiated proceedings under Section 25 of the Guardians and Wards Act, 1890, before the Family Court, Srinagar. The Family Court granted him custody on January 2, 2025. However, on appeal, the High Court reversed this decision on September 8, 2025, restoring custody to the mother, which led to the present appeal before the Supreme Court.
Arguments Before the Supreme Court
Ms. Meenakshi Arora, learned senior counsel for the appellant-husband, argued that the respondent-wife had removed the minors from Qatar mid-session, disrupting their education in a “Gold Standard British Curriculum School.” She contended that the children were not sent to school for two years and that their subsequent attendance in Srinagar was poor.
Ms. Arora further submitted that:
- The mother failed to furnish a plausible explanation for shifting the children without the father’s consent or original passports.
- The children, especially the elder son, were capable of forming an intelligent preference and had expressed a desire to be with the father.
- The mother’s work schedule required extensive travel, whereas the father had a flexible schedule allowing him to care for the minors.
Mr. Altaf Hussain Naik, learned senior counsel for the respondent-wife, argued that there was no error in the High Court’s judgment. He emphasized that in custody matters, the “paramount interest is the welfare of the children,” and that financial capacity or the conduct of the parties should not outweigh this interest. He submitted that the children were settled in a reputed school in Srinagar with satisfactory progress.
Supreme Court’s Observations and Analysis
The Supreme Court observed that while the welfare of the children is indeed the paramount consideration, the High Court erred in holding that factors such as the conduct of parties, financial capacity, and standard of living were “not very relevant.”
On the Mother’s Conduct: The Court noted that the High Court failed to consider the impact of the respondent-wife’s conduct. Justice Mithal, writing for the Bench, observed:
“The High Court while writing the opinion had referred to the fact that the respondent-wife had travelled and moved the minors to India without the consent of the appellant-father… but rather by procuring fake or duplicate or fresh passports… However, the court below has not considered the effect and impact of this conduct while granting the custody to the respondent-wife.”
On the Qatar Court Order: The Bench highlighted that the High Court ignored the October 31, 2023 order from the Qatar Court, which had revoked the mother’s custody.
“The revocation of the order of custody was a crucial material for the purpose of determining the custody of the children. In fact, there was no subsisting order of custody of children in favour of the respondent-wife…”
On Contempt of Court: The Supreme Court pointed out that the High Court also ignored the finality of the Contempt Order against the wife for violating her undertaking to return the children to Qatar.
“The aforesaid contempt order has attained finality and is conclusive, and as such, the respondent-wife cannot resile from her guilty conduct.”
On the Children’s Preference: The Court referred to a mediation report indicating that both children expressed an inclination to join their father. The younger child was “visibly distressed” and expressed a wish to go with the father, while the elder child felt the father’s presence would be sufficient for their care in Qatar. The Court held that the High Court had “completely ignored” these material aspects.
Decision
The Supreme Court allowed the appeal and set aside the High Court’s judgment dated September 8, 2025.
“In view of the aforesaid facts and circumstances, we are of the opinion that the impugned judgement and order… cannot be sustained in law and is liable to be set aside.”
The matter has been remanded to the High Court for reconsideration on its own merits, with a direction to decide the case expeditiously, preferably within four months.
Case Details:
- Case Title: Mohtashem Billah Malik v. Sana Aftab
- Case No: Civil Appeal No. of 2026 (Arising out of S.L.P. (C) No.28934 of 2025)
- Coram: Justice Pankaj Mithal and Justice S.V.N. Bhatti
