Sana Aftab v. Mohtashem Billah Malik, 2026

The parties were married in Srinagar and subsequently moved to Qatar, where the respondent-husband was employed as an Electrical Engineer.

The couple had two minor sons.

Due to matrimonial discord, the marriage was dissolved by the Qatar Family Court.

The Qatar Court granted physical custody of the children to the mother.

The appellant-mother subsequently returned to Kashmir with the children.

The respondent-father challenged the mother's custody and alleged that the children had been taken away from Qatar unlawfully.

During the proceedings, the mother agreed to return to Qatar.

She travelled to Qatar for a short period but subsequently brought the children back to India.

The mother allegedly procured duplicate passports for the children in order to facilitate their relocation.

Her conduct resulted in further contempt and custody proceedings before the Qatar Court.

The Qatar Court subsequently revoked the custody order that had earlier been granted in favour of the mother.

The father thereafter sought custody before the Indian courts under Section 25 of the Guardians and Wards Act.

The father alleged that the mother had disrupted the children's education by removing them from a reputed school in Qatar.

He also alleged that the mother had violated undertakings given before the court.

The mother contended that she had left Qatar because of harassment by the father.

She stated that the children were studying at Delhi Public School, Budgam, and were settled in Kashmir.

The Trial Court ultimately directed that custody of the children be entrusted to the father.

The mother challenged that decision before the High Court.

The Supreme Court subsequently remanded the matter to the High Court for reconsideration of certain aspects.

The High Court examined the children's welfare, the mother's conduct, the father's financial position, the children's education, their preferences and the previous findings of the Qatar Court.

The High Court interacted personally with both children for approximately 40 minutes.

The Court found that both children loved their father but were uncomfortable with the prospect of leaving their mother and returning to Qatar.

The Court ultimately concluded that continued custody with the mother was in the best interests and welfare of the children.

The High Court allowed the mother's appeal.

The Court set aside the judgment of the Additional Judge, Family Court, Srinagar, which had directed custody of the two minor children to the father.

The petition filed by the father under Section 25 of the Guardians and Wards Act was dismissed.

The Court held that the mother's violation of the Qatar Court's direction against relocating the children did not, by itself, make her unfit to retain custody.

The Court emphasized that the circumstances in which the mother took the children from Qatar had to be examined before drawing an adverse conclusion against her.

The Court noted that the Qatar Court had previously found the mother to be best suited to have custody on the merits of the matter.

The Court held that the subsequent revocation of the custody order did not automatically erase that substantive finding.

The Court gave primary importance to the welfare of the children.

The Bench held that greater financial prosperity of the father was not, by itself, sufficient to establish that custody with him would better serve the children's welfare.

The Court found that the children were studying at Delhi Public School, Budgam, which it regarded as a prestigious educational institution.

The Court rejected the argument that education in Qatar was necessarily superior to education available in Kashmir.

The Court personally interacted with both children and found that they had become settled in Kashmir.

The children had developed friendships and were comfortable in their present school.

Although both children loved their father, they were not comfortable with the prospect of living with him without their mother.

The Court also found that the mother had not attempted to alienate the children from their father.

The Court particularly appreciated the mother's willingness on several occasions to facilitate temporary custody and visitation with the father.

The Court regarded this conduct as an important factor demonstrating that the mother had not attempted to sever the children's emotional relationship with their father.

The Court also criticized the father's conditional offer of ₹25 lakh in connection with relocating the children, observing that parental support should not be conditional in such circumstances.

The Court directed that custody of the children would continue with the mother.

At the same time, the Court made arrangements for the father's visitation rights and temporary custody.

The appeal was therefore allowed.

Welfare is paramount: The most important principle reaffirmed by the judgment is that custody disputes are not primarily contests between competing parental rights. The controlling consideration is the welfare of the children.

Conduct of the mother: The Court did not approve the mother's violation of the Qatar Court's order or the procurement of duplicate passports. However, it refused to treat that conduct as automatically decisive against her. The circumstances surrounding the conduct and its impact on the children had to be considered.

Foreign custody order: The Qatar Court had earlier determined, on merits, that the mother was best suited to have custody. The High Court considered that finding significant even though the custody order was subsequently revoked because of the mother's conduct.

Mohammedan law and Hizanat: The Court discussed the traditional principle of Hizanat, under which the mother has a recognized right of custody of minor children, particularly during their early years. However, the Court made clear that custody ultimately remains subject to the child's welfare and the mother's continuing fitness.

Parens patriae jurisdiction: The Court relied on the principle that in custody matters, the court acts as parens patriae, effectively exercising protective jurisdiction on behalf of the child. The court therefore has to look beyond strict parental claims and determine what arrangement best serves the child.

Rosy Jacob principle: The Court relied on Rosy Jacob v. Jacob A. Chakramakkal, emphasizing that custody orders must focus on the welfare of minors while considering all relevant circumstances, including parental rights.

Nil Ratan Kundu principle: The Court also relied on Nil Ratan Kundu v. Abhijit Kundu, which recognizes that comfort, contentment, health, education, intellectual development and favourable surroundings are important components of child welfare.

Financial superiority: The judgment rejects the assumption that the parent earning more money should automatically receive custody. Financial capacity is relevant, but it is only one factor among many.

Education: The Court found no persuasive basis for concluding that the children's education in Qatar would necessarily be superior to their education in Kashmir. Their actual adjustment to their existing school environment was also important.

Children's wishes: The Court's personal interaction with the children was particularly significant. Their views demonstrated that, although they loved their father, they did not wish to be separated from their mother.

Parental alienation: The Court placed considerable weight on the mother's conduct in not poisoning the children's minds against their father. Her willingness to facilitate contact was viewed positively and became an important factor in the custody determination.

Relationship with both parents: The judgment recognizes that preserving a child's relationship with both parents is important. Giving custody to one parent does not mean eliminating the other parent's role.

Conditional financial offer: The Court's criticism of the father's conditional monetary offer reflects the principle that parental responsibility should not be reduced to financial transactions. Emotional support and parental affection are equally significant.

Impact on custody jurisprudence: The ruling demonstrates that courts must undertake a holistic welfare assessment rather than imposing custody as a punishment for a parent's procedural violation.

Important qualification: The judgment does not approve the mother's procurement of duplicate passports or violation of the Qatar Court's directions. Rather, it holds that such conduct must be evaluated alongside all other circumstances and cannot, standing alone, override the welfare of the children.

Broader significance: The decision is particularly relevant to international custody disputes, where one parent relocates children across borders in violation of an existing court order. The judgment emphasizes that questions of comity and parental conduct remain important, but the ultimate Indian custody determination must still focus on the welfare of the children.