SUPREME COURT HOLDS WELFARE OF CHILD PARAMOUNT BUT NOT SOLE CONSIDERATION IN CUSTODY DISPUTES

Introduction
In Mohtashem Billah Malik v. Sana Aftab, (SLP (C) No. 28934 of 2025), the Supreme Court of India dealt with a cross-border custody dispute involving two minor sons of the parties. The Judgment was delivered on 4 February 2026 by the Two Judge Bench comprising Justices Pankaj Mithal and S.V.N. Bhatti, in an appeal challenging the Jammu & Kashmir and Ladakh High Court’s decision that had restored custody to the mother after the Family Court, Srinagar had granted custody to the father.
Factual background
The parties, both Indian citizens, married in Srinagar on 28 July 2015 under Muslim personal law and thereafter lived in Qatar where the Husband worked as an electrical engineer. Two sons were born in Qatar: Malik Karim Billah (born 17 October 2017) and Malik Rahim Billah (born 4 November 2019).
Following matrimonial discord, both spouses filed divorce petitions before the Family Court in Qatar, which were decided together by Judgment and Order dated 29 March 2022 granting a decree of judicial divorce on the ground of mutual abuse. Under that arrangement, custody was granted to the Wife, while guardianship was given to the Husband. Additionally, the Husband was directed to hand over the children’s personal documents to the Wife except the passports, which were to remain with him as guardian.
In August 2022, the Wife travelled to India with the minors and began residing in Srinagar, allegedly by obtaining fresh/duplicate passports and without the Husband’s consent or prior permission of Qatar Courts. The Husband responded by filing a habeas corpus petition before the J&K High Court alleging illegal custody. This led to LPA No. 216/2022, disposed of on 1 December 2022 on the basis of the Wife’s in-court statement/undertaking that she would return to Qatar before the elder child’s school reopened (on or before 2 January 2023) and would take steps regarding the younger child’s residency permit. The Wife, however, did not take the minors back; though she visited Qatar in December 2022, the children remained in India.
Consequently, the husband sought revocation of the Wife’s custody in Qatar, and the Qatar Court revoked the earlier custody order and directed custody to be given to the Husband. Parallelly, contempt proceedings were initiated in Srinagar (CCP(D) No. 4/2023), and by order dated 6 August 2024 the contempt court held the wife guilty of violating her undertaking, imposed a token fine, warned her and restored the LPA for decision on merits since it had earlier been disposed of on the undertaking.
Thereafter, the Husband filed proceedings under Section 25 of the Guardians and Wards Act, 1890 before the Family Court, Srinagar seeking custody. The Family Court granted custody to the Husband. The Wife appealed and the High Court reversed the Family Court’s Order, restoring custody to the Wife.
Court’s decision
The Supreme Court reiterated that while the welfare of the child is paramount, courts typically consider a range of relevant factors that inform welfare, including conduct of parties, financial capacity, standard of living and the children’s comfort and education. On that basis, the Court found the High Court’s narrow view, that these factors were essentially irrelevant and welfare alone mattered, to be overstated, because “welfare” assessment itself can be influenced by these connected considerations.
The Court held that the High Court did not adequately account for material circumstances, particularly: (i) the Wife’s act of relocating the minors to India without the Father’s consent and without original passports, allegedly by procuring duplicate/fresh passports; (ii) the Qatar court’s Order revoking the Wife’s custody and directing custody to the Husband, which the Supreme Court considered crucial because it meant there was no subsisting custody order in the Wife’s favour; and (iii) the Contempt Order that had attained finality, holding the Wife guilty for violating her undertaking to return with the children to Qatar. The Supreme Court also noted that allegations of assault against the Husband had not resulted in any subsisting conviction and that the Qatar Court had given him a clean chit, undermining the argument that he should be disentitled from the children’s company on that basis.
Additionally, the Court observed that the High Court had ignored relevant material such as the Family Court’s findings about the minors’ inclination to accompany the father to Qatar and the mediation report placed before the Supreme Court, which recorded the children’s inclination towards joining the Father and noted their language/social adjustment issues (speaking only English and difficulty conversing with local children). Holding that the High Court’s Judgment could not be sustained in law, the Supreme Court set aside the impugned Judgment and remanded the matter to the High Court for fresh consideration on merits, preferably within four months of a certified copy being placed before it.
Conclusion
This Judgment is best read as a caution against reducing custody adjudication to a single abstract formula: “welfare of the child” remains central, but courts must still engage with concrete, proven circumstances that shape that welfare. The Supreme Court did not itself finally decide permanent custody; instead, it emphasized that key events like foreign court orders, contempt findings and the manner of relocation were too significant to be sidelined and required a comprehensive re-evaluation by the High Court.

YASH HARI DIXIT
LEGAL ASSOCIATE
THE INDIAN LAWYER AND ALIED SERVICES
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