The High Court of Jammu & Kashmir and Ladakh has held that a mother’s violation of a foreign court order, including relocating her minor children from Qatar to India and procuring duplicate passports for them, does not by itself make her unfit to have custody of the children. The Court emphasised that in custody matters, the overriding consideration is always the welfare and best interests of the children. Therefore, even though the mother’s conduct in removing the children from Qatar was legally impermissible, that conduct alone could not defeat her claim to custody when the overall circumstances demonstrated that she continued to be the parent better suited to look after the children. The judgment was delivered by Justice Sanjay Dhar in the case of Sana Aftab v. Mohtashem Billah Malik, reported as 2026 LiveLaw (JKL) 326.
The dispute arose between a husband and wife who had originally married in Srinagar and later moved to Qatar because the husband was employed there as an Electrical Engineer. The couple had two minor sons. Subsequently, serious matrimonial differences developed between them, resulting in the dissolution of their marriage by the Qatar Family Court. In the proceedings before the Qatar court, physical custody of the children was granted to the mother. Following the custody order, the mother returned to Kashmir with the children. The father subsequently challenged her custody and alleged that the children had been unlawfully removed from Qatar. This led to a prolonged legal dispute concerning which parent should have physical custody and where the children should live and receive their education.
The custody dispute became more complicated when the mother, during the proceedings, agreed to return to Qatar. She travelled there for a short period but subsequently brought the children back to India. According to the material considered by the High Court, the mother had obtained duplicate passports for the children in the process of relocating them from Qatar. Her actions eventually resulted in proceedings concerning violation of the directions and conditions imposed by the Qatar court. The father relied heavily upon this conduct to argue that the mother had demonstrated disregard for judicial orders and therefore should not be entrusted with the custody of the children.
The father thereafter approached the Indian courts seeking custody under Section 25 of the Guardians and Wards Act. His case was that the mother had disrupted the children's education by removing them from a reputed school in Qatar and placing them in a different educational and social environment in India. He also alleged that she had violated an undertaking given before the court and had acted contrary to the orders governing the children's custody. According to the father, these circumstances demonstrated that the mother was not acting in the children's best interests and that custody should therefore be transferred to him. The trial court accepted his claim and directed that custody of the two children be entrusted to the father.
The mother challenged the trial court's decision before the High Court. She explained that her decision to leave Qatar with the children was influenced by the circumstances of the matrimonial dispute and allegations of harassment by the father. She also maintained that the children were receiving proper education in Kashmir, including at Delhi Public School, Budgam. The custody dispute had already travelled through different stages of litigation, and the Supreme Court had earlier remanded the matter to the High Court for reconsideration of certain aspects. The High Court therefore examined the complete factual background rather than treating the mother's violation of the foreign court's order as automatically decisive.
A central principle applied by the High Court was that the welfare of the minor is the paramount consideration in custody disputes. The Court relied upon the Supreme Court's decision in Rosy Jacob v. Jacob A. Chakramakkal, which established that while considering custody under the Guardians and Wards Act, the court must primarily focus on the welfare of the children. The legal rights of the parents, including the father's position as natural guardian, are relevant but cannot override the welfare of the minors. The Court also relied upon Nil Ratan Kundu v. Abhijit Kundu, where the Supreme Court explained that courts exercising custody jurisdiction act in a parens patriae capacity and must consider factors such as the child's comfort, contentment, health, education, intellectual development and favourable surroundings.
The High Court also examined the position under Mohammedan law concerning the mother's right of custody, known as Hizanat. The Court noted that a mother is ordinarily entitled to custody of her male child until the child reaches seven years of age, subject to recognised exceptions. Importantly, the Court observed that even after a child crosses that age, custody can continue with the mother provided she has not remarried or engaged in conduct making her unfit to retain custody. Thus, the mother's right is not automatically extinguished merely because the children become older. What remains decisive is whether her conduct and circumstances demonstrate that she is capable of providing a suitable environment for the children.
While examining the mother's relocation of the children from Qatar, the High Court acknowledged that she had indeed removed the children from Qatar and had procured duplicate passports for them. The Court did not treat this conduct as legally proper. However, it distinguished between the question of whether the mother's conduct amounted to a violation of a court order and the separate question of whether she was otherwise a fit parent. The Court observed that the circumstances in which she took what it described as an extreme step required serious consideration. The fact that she had violated the Qatar court's directions could not, by itself, erase the earlier finding of the Qatar court that she was the parent best suited to have custody of the children.
The High Court gave particular importance to the merits of the Qatar Family Court's original custody determination. It noted that the Qatar court had found that the conditions for awarding custody to the mother had been satisfied and that the father's objections were not supported by sufficient evidence. The allegations concerning the mother's psychological condition were also found to be unsubstantiated. Therefore, although the Qatar court's later orders had consequences for the mother's custody after she relocated the children, the original substantive assessment that she was suitable to care for the children could not simply be treated as having disappeared. The High Court considered this earlier finding relevant while deciding what arrangement would now serve the children's welfare.
Another important issue before the Court was the difference in the financial circumstances of the parents. The father had a comparatively strong financial position and earned a substantial income in Qatar. The High Court, however, rejected the suggestion that greater economic prosperity automatically makes one parent more suitable for custody. The Court stressed that financial strength is only one factor and cannot by itself determine the welfare of a child. A parent with greater income cannot claim superior custody merely because that parent can provide a more expensive lifestyle. The Court therefore refused to treat the father's higher income as sufficient reason to disturb the mother's custody.
The children's education was also examined carefully. The father had argued that removing the children from Qatar had harmed their education because they had previously attended a reputed school there. The High Court noted that the mother had secured admission for the children at Delhi Public School, Budgam, which the Court described as one of the prestigious educational institutions in the region. The Court rejected the suggestion that the children would necessarily receive a substantially better education merely because they studied in Qatar. It observed that the father himself had received his education in Srinagar before obtaining a prestigious international job. Therefore, the argument that education in Kashmir was inherently inferior to education in Qatar was found to lack sufficient material support.
The Court also considered the present circumstances of the children rather than focusing exclusively on their earlier life in Qatar. During the proceedings, the Court personally interacted with both children for approximately 40 minutes. This interaction became an important part of the Court's assessment of their welfare and preferences. The younger child appeared somewhat more inclined towards his father but made it clear that he could not live with his father without his mother. The elder child stated that he had settled in Kashmir, had developed friendships at his school and was uncomfortable with the prospect of returning to Qatar for education. These statements indicated that the children had developed a sense of stability in their present environment.
The Court found that both children loved their father and did not appear to have rejected him emotionally. However, they were not comfortable with the idea of separating from their mother and living with their father alone. This distinction was significant because the Court did not view the mother's custody as preventing the children from maintaining a relationship with their father. Instead, it found that the children could remain with their mother while continuing to have meaningful contact with their father. The Court therefore focused on preserving both parental relationships rather than treating custody as a choice that necessarily required eliminating one parent's role from the children's lives.
A particularly significant factor in favour of the mother was her conduct towards the children's relationship with their father. The High Court observed that in bitter matrimonial disputes, there can sometimes be a tendency for one parent to influence children against the other parent. However, the Court found no such behaviour on the part of the mother in this case. It specifically noted that she had not attempted to tutor or poison the children against their father. On occasions when she was asked to hand over temporary custody, she had voluntarily permitted the father to have the children even without a formal court order. According to the High Court, this demonstrated that she had not attempted to emotionally or physically distance the children from their father.
The Court considered this conduct to be a determinative factor in the custody dispute. Rather than viewing the mother only through the lens of her earlier violation of the Qatar court's order, the Court assessed her continuing behaviour as a parent. Her willingness to maintain the children's relationship with their father suggested that her primary concern was not to exclude him from their lives. The High Court considered this particularly relevant because custody disputes can have long-term emotional consequences for children when parents attempt to use them as instruments in matrimonial conflicts. The Court's approach therefore placed considerable importance on the mother's ability to support the children's relationship with both parents.
The Court also commented on a financial offer made by the father. The father had apparently offered to pay ₹25 lakh if the children were relocated. The High Court was critical of the conditional nature of this proposal. It observed that a father should not make offers for maintaining his children subject to conditions concerning their relocation. According to the Court, parental love and responsibility towards children should be unconditional and should not be linked to financial arrangements designed to secure a particular custody outcome. This factor further influenced the Court's assessment of the father's conduct in the overall custody dispute.
Ultimately, the High Court allowed the mother's appeal and set aside the judgment of the trial court that had awarded custody to the father. The father's petition under Section 25 of the Guardians and Wards Act was dismissed. The Court directed that the custody of the minor children would continue with the mother while arrangements would be made to protect the father's visitation and temporary custody rights. Thus, the judgment did not sever the father's relationship with the children; instead, it attempted to balance the mother's primary custody with the father's continuing right to interact with and spend time with his sons.
The ruling is significant because it reinforces the principle that custody proceedings are not meant to punish a parent for past misconduct but to determine what arrangement is presently best for the child. The mother's violation of a foreign court order and her procurement of duplicate passports were serious matters, but the High Court refused to allow those actions to automatically determine custody. The Court instead examined the children's present circumstances, education, emotional attachment, relationship with both parents, the mother's conduct, the financial circumstances of the parents and the earlier findings of the Qatar court. This holistic approach reflects the established principle that the welfare of the child must remain superior to the competing legal claims of the parents.
The judgment therefore establishes an important distinction between disobedience of a court order and parental unfitness. A parent's violation of a judicial direction may have legal consequences, but it does not necessarily mean that the parent is incapable of caring for a child. In custody matters, the court must still determine whether transferring custody would actually advance the child's welfare. In the present case, the High Court concluded that the children's stability in Kashmir, their attachment to their mother, their education, their relationship with their father and the mother's demonstrated willingness to preserve that relationship collectively outweighed the adverse inference that could otherwise have been drawn from her earlier conduct.
In conclusion, the Jammu & Kashmir and Ladakh High Court's decision in Sana Aftab v. Mohtashem Billah Malik underscores that the ultimate objective of custody jurisdiction is not to reward or punish either parent but to secure the best possible environment for the children. The mother's relocation of the children from Qatar, even though accompanied by violation of court directions and procurement of duplicate passports, was not treated as sufficient by itself to deprive her of custody. The Court found that the children were settled with their mother, comfortable in their present educational environment and emotionally attached to both parents. By continuing custody with the mother while preserving visitation and temporary custody rights for the father, the High Court sought to place the children's welfare, stability and emotional well-being above the competing claims and past conduct of the parents.
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