Supreme Court: In a custody dispute involving custody of two minor sons, the Division Bench of Pankaj Mithal* and SVN Bhatti, JJ., emphasized that while the welfare of the children is undoubtedly the paramount consideration in custody matters, other child custody factors also carry weight in shaping the final order. These include the parents’ financial capacity, the standard of living, the children’s comfort, and their education. Accordingly, the High Court may not have been entirely correct in holding that such factors are of little relevance and that custody must depend solely on child’s welfare. The Court observed that the High Court had overlooked the material and crucial aspects while passing the impugned order. Thus, the Court set aside the order passed by the High Court and remanded the matter for reconsideration.
Background
In the present case, both husband and the wife were well educated Indian citizens. The husband served as electrical engineer in Qatar since 2012 and after their marriage on 28-7-2015 as per Muslim personal law, both of them started residing at Qatar, where two sons were born to them from the wedlock.
Subsequently, due to matrimonial discord, the parties filed separate divorce petitions, before the Qatar Family Court, whereby vide common judgment and order dated 29-3-2022, divorce based on mutual abuse was granted. The husband was directed to pay alimony, enjoyment compensation, monthly child support, etc. Custody of the minors was given to the wife, while guardianship to the husband. Since, the husband was the guardian, the passports were in his custody.
On 18-8-2022, the wife travelled to India by either procuring fresh passports for children or based on duplicate passports; and started residing at Srinagar. Allegedly, the wife removed the minors from Qatar to India during their academic session, without the husband’s knowledge and consent. Thus, the husband filed a Habeas Corpus Petition before the Jammu & Kashmir and Ladakh High Court, alleging that his minor sons were in the wife’s illegal custody. This dispute was disposed of in appeal, considering the wife’s statement that she will go back to Qatar before the schools reopen or before 2-1-2023 and she will undertake all necessary steps for obtaining residency permit for her younger son. However, the wife failed to keep her undertaking.
Subsequently, the husband had initiated contempt proceedings against the wife for violating her undertaking. The Contempt Court held the wife not guilty of committing contempt and sentenced ger with a token fine. Further, the husband initiated fresh proceedings before Family Court, Srinagar under Section 25 of the Guardians and Wards Act, 1890, seeking custody of the two minor children. The Family Court granted custody of minors to the husband. However, the High Court reversed the decision, which is challenged in the present case.
Analysis, Law, and Decision
The Court emphasized that while the welfare of the children is undoubtedly the paramount consideration in custody matters, other factors also carry weight in shaping the final order. These include the parents’ financial capacity, the standard of living, the children’s comfort, and their education. Accordingly, the High Court may not have been entirely correct in holding that such factors are of little relevance and that custody must depend solely on welfare.
The Court stated that the High Court completely failed to consider the impact of Qatar Court’s judgment, as the revocation of the custody order was a crucial material to determine the children’s custody. There was no subsisting custody order in wife’s favour; rather, it was in the husband’s favour appointing him as the guardian of the minors. All these aspects were highly relevant.
The Court stated that the High Court also ignored the impact of the contempt order. The contempt order has attained finality and is conclusive, and as such, the wife cannot resile from her guilty conduct. Further, regarding the abuse and assault case filed against the husband, the Qatar Court had given a clean chit to him and there is no subsisting conviction for assault against him, which demonstrates that the misconduct against him has not been proved, so as to disentitle him from the children’s company.
The Court, referring to the mediation report, noted that both children expressed a clear inclination to join their father. Although they had little or no conscious memory of life in Qatar, they conveyed a desire to explore and reside there. When asked about their care in Qatar, the elder child stated that his father’s presence would be sufficient and that someone would inevitably be available to look after them. The Court further observed that both children appeared comfortable with the idea of being without their mother. The younger child, in particular, repeatedly expressed his wish to go with the father and showed visible distress during the interaction. It was also recorded that both children speak only English and faced difficulty in conversing with local children.
The Court observed that the High Court had overlooked the material and crucial aspects while passing the impugned order. Although these factors may not, on their own, be decisive in determining custody, they remain necessary and relevant considerations, and their cumulative effect was certainly significant in arriving at a proper custody arrangement. Thus, the Court set aside the order passed by the High Court and remanded the matter for reconsideration most expeditiously, preferably within a period of four months.
[Mohtashem Billah Malik v. Sana Aftab, Civil Appeal No. 771 of 2026, decided on 4-2-2026]
*Judgment authored by- Justice Pankaj Mithal
Advocates who appeared in this case:
For the Petitioner: Meenakshi Arora, Sr. Adv.; Prosenjeet Banerjee, Adv.; Nidhi Mohan Parashar, AOR; Soayib Qureshi, Adv.; Vikrant Kumar, Adv.; Aditya Krishna, Adv.; Kavya Singh, Adv.; Anushri Joshi, Adv.; Anshika Sharma, Adv.; Amar Bajpayee, Adv.
For the Respondent: Altaf Hussain Naik, Sr. Adv.; Syed Mehdi Imam, AOR; Atif Suhrawardy, Adv.