Welfare of Minor Children Paramount in Custody Decisions, Emphasizes Court
In a significant ruling, the Jammu & Kashmir and Ladakh High Court at Srinagar upheld the custody of two minor children with their mother, Sana Aftab, amidst a complex international custody battle against their father, Mohtashem Billah Malik. The court, presided over by Justice Sanjay Dhar, emphasized the welfare of the children as the paramount consideration in such disputes, outweighing factors like financial capacity or standard of living of the parents.
The judgment, dated August 14, 2026, was delivered in the appeal against the Family Court's decision to award custody to the father, Mohtashem Billah Malik, an Electrical Engineer based in Qatar. The case had a chequered history of litigation, involving courts in both India and Qatar, after the dissolution of the couple's marriage in March 2022 by a Qatari court, which initially granted custody to the mother.
The High Court noted that while factors such as conduct, financial capacity, and standard of living are relevant, they cannot override the welfare of the children. The court observed that disrupting the settled environment of the children, who have been thriving academically and psychologically in Kashmir, would not be conducive to their welfare.
The court took into account the mother's entitlement to custody under Mohammedan Law, which provides mothers the right to custody (Hizanat) of male children until the age of seven, unless misconduct or remarriage is proven. Despite the father's financial stability and higher standard of living in Qatar, the court found that the mother's conduct, in fostering a positive relationship between the children and their father despite the marital discord, weighed in her favor.
Addressing the father's claims, the court noted that although the mother relocated the children to India against a Qatari court order, this action was not sufficient to disentitle her to custody, especially as it aligned with the children's welfare. The court further observed that the elder child expressed a preference to remain in Kashmir, highlighting the importance of the children's comfort and inclination in custody decisions.
Visitation rights were granted to the father to ensure continued bonding, with arrangements for temporary custody during vacations and festivals outlined for two years.
Bottom Line :
Welfare of minor children is the paramount consideration in custody disputes, outweighing financial capacity or standard of living of the parents.
Statutory provision(s): Guardian and Wards Act, 1890 Section 25
Sana Aftab v. Mohtashem Billah Malik, (J&K and Ladakh)(Srinagar) : Law Finder Doc id # 2961582
