Mother Retains Custody of Two Sons Despite Passport Violation and Contempt Finding, J&K High Court Rules
Justice Sanjay Dhar set aside a Family Court order transferring custody to the father, holding that the mother's misconduct did not outweigh the children's settled welfare in Kashmir.
The High Court of Jammu & Kashmir and Ladakh at Srinagar has restored custody of two minor boys to their mother, overturning a Family Court judgment that had transferred them to their father. Justice Sanjay Dhar, sitting singly in FAO(MAT) No.01/2025, found that while the mother had violated a Qatar court custody order, procured duplicate passports for her children, and breached an undertaking given to a Division Bench of this Court — resulting in a contempt conviction — none of these transgressions, individually or together, displaced the paramount consideration of the children's welfare. The children, now settled in Kashmir, studying at Delhi Public School, Budgam, and maintaining bonds with grandparents on both sides, stood to suffer fresh psychological trauma if relocated to Qatar. The judgment, reserved on 9 July 2026 and pronounced on 14 August 2026, follows a Supreme Court remand that had directed the High Court to reconsider six specific aspects it had omitted in an earlier order.
A Marriage, a Divorce in Qatar, and a Cross-Border Custody Battle
The parties, both Muslim, married in Srinagar on 28 July 2015. The respondent-father, an Electrical Engineer employed in Qatar since 2013, relocated the appellant-mother there immediately after marriage. Two sons were born: Malik Karim Billah on 17 October 2017 and Malik Rahim Billah on 4 November 2019.
The marriage broke down, and the Family Court at Qatar dissolved it by judgment dated 29 March 2022, deciding two cross-cases filed by the parties. The Qatar court handed physical custody of both children to the mother. In August 2022, instead of remaining in Qatar as directed, the mother shifted with the children to Kashmir, procuring fresh passports for them in the process. The father contended before this Court that the children were being held in illegal custody, filing WP(Crl) No.636/2022. The writ court declined his prayer.
He then filed LPA No.216/2022. During the appeal, the mother made a statement before the Division Bench that she would return to Qatar with the children by 2 January 2023, before the elder son's school reopened. The LPA was disposed of on 1 December 2022 on the basis of that undertaking. The mother did travel to Qatar in the third week of December 2022 but returned to India without the children, triggering a contempt petition, CCP(D) No.04/2023. The Division Bench, dissatisfied with her explanation that she faced harassment and police summons in Qatar, held her guilty of breach of undertaking and imposed a token fine of ₹100.
The respondent father subsequently filed a petition under Section 25 of the Guardian and Wards Act, 1890 before the Additional Judge, Family Court, Srinagar, seeking custody. LPA No.216/2022 was formally disposed of on 24 September 2024, as the Section 25 petition had been filed and the LPA had lost relevance.
The Trial Court's Order and the First Round Before the High Court
The Additional Judge, Family Court, Srinagar allowed the father's petition by judgment dated 2 January 2025, directing custody of both minor children to be handed over to the respondent-father subject to conditions. The trial court weighed the conduct of both parties, their standard of living and income, and the age, gender and preference of the children, including an impression from its interaction with the children that they appeared more inclined towards their father.
The mother appealed. This Court, in FAO(MAT) No.01/2025, allowed the appeal by judgment dated 8 September 2025, dismissing the respondent's Section 25 petition and setting aside the Family Court order. The High Court observed that custody cannot be changed merely as a punitive measure against the mother's conduct or because of the father's superior financial position, and that relocating the children from their settled environment in Kashmir would harm their welfare.
The father challenged that judgment before the Supreme Court by way of SLP(C) No.28934/2025. The Supreme Court, by judgment dated 4 February 2026, set aside the High Court's order of 8 September 2025 and remanded the matter for reconsideration, specifying six aspects the High Court had not adequately addressed.
Six Aspects the Supreme Court Required the High Court to Address
The Supreme Court's remand judgment identified the following gaps in the High Court's earlier reasoning:
(I) Conduct of the parties, financial capacity, standard of living, and comfort and education of the children are relevant factors; the High Court was not entirely correct to hold them as not very relevant.
(II) The impact of the mother relocating the children from Qatar using duplicate passports had not been considered.
(III) The Qatar court's order dated 31 October 2023, revoking the custody order in the mother's favour on account of her removing the children from Qatar without the father's consent or the court's permission, had not been factored in.
(IV) The impact of the contempt court's finding that the mother had violated the undertaking given to the Division Bench on 1 December 2022 had not been taken into account.
(V) In criminal proceedings against the father before a Qatar court regarding abuse and assault, he had been given a clean chit by the appellate court, with no subsisting conviction, and this had not been noted.
(VI) The Family Court's finding that the children had shown inclination to accompany their father, and the mediation report's material observations to that effect, had not been considered.
The Legal Framework: Welfare as the Paramount Consideration
Justice Sanjay Dhar surveyed the settled legal position before proceeding to apply it. Under Mohammedan law, the father is the natural guardian of a minor child, but the mother is entitled to Hizanat — custody. The right of Hizanat continues even after divorce, unless the mother remarries or her own misconduct makes her unfit. The Court relied on the Allahabad High Court's analysis in Hashmat Ali v. Smt. Suraya Begum, AIR 1971 All 260, noting that the mother's right of custody of a male child under Hanafi doctrine extends until the child completes seven years, and that beyond that age, the mother can retain custody provided she has not remarried or misconducted herself.
On the broader question of factors governing custody, Justice Dhar drew on the Supreme Court's judgment in Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, which holds that under Section 25 of the Guardian and Wards Act the dominant consideration is the welfare of the minor, with all other factors — including the father's fitness and financial standing — subordinate to that. The Court also referred to Nil Ratan Kundu & Anr. v. Abhijit Kundu, (2008) 9 SCC 413, which requires courts to weigh the child's ordinary comfort, contentment, health, education, intellectual development and moral values, and to give due weight to any intelligent preference expressed by a child old enough to form one. Smriti Madan Kansagra v. Perry Kansagra, (2021) 12 SCC 289, was cited for the proposition that educational opportunities are of great significance while determining the best interest of the child, and that courts must not allow the determination to be clouded by inter-se disputes and allegations between the parties.
Synthesising these authorities, the Court stated that conduct, financial capacity, standard of living and educational opportunities are all relevant factors but the paramount consideration is the welfare of the children.
How the Court Reasoned on Each Contested Factor
Conduct of the mother — duplicate passports and relocation. The Court accepted that the mother violated the Qatar court's custody conditions by removing the children using duplicate passports. However, it looked at the circumstances: after the divorce and the loss of her employment in Qatar, she was alone in a foreign country with no support. The respondent had filed cases against her, and she had been summoned by the police there. The Qatar court's original merits finding — that conditions of custody in the mother's favour were met and that the father's allegations of psychological illness were devoid of evidence — remained intact. The revocation of the custody order by the Qatar court on 31 October 2023 was on account of the procedural violation of removing the children, not a reversal of the merits. The Court held that the mother's conduct, while legally impermissible, did not by itself disentitle her to custody if the children's welfare was otherwise best served by remaining with her.
The respondent's counsel relied on Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698, where the Supreme Court held that procuring a duplicate passport on a false representation disentitles a parent to custody. Justice Dhar distinguished the facts: in that case the husband had received magnanimity from his wife, abused it, and fled with the child. Here, the respondent had himself filed a lawsuit against the mother before the Qatar court seeking custody and demanding that she pay fees and expenses, which was dismissed. The mother had separately obtained a conviction against him for physical assault — set aside later by the Qatar appellate court on technical grounds only, not on merits. The ratio of Surinder Kaur Sandhu was held inapplicable.
Breach of undertaking and contempt. The Court acknowledged that the mother was convicted of contempt and fined ₹100. It noted, however, that she had attempted to return to Qatar in December 2022 and found the atmosphere hostile, which led her to return to India without the children. The contempt finding was a legal consequence of that breach, but it did not transform her into an unfit mother if the children's welfare favoured continued custody with her.
Financial capacity and standard of living. Justice Dhar held that greater economic prosperity of the father is not a guarantee of the minor's welfare and does not displace the presumption in the mother's favour. The respondent's higher income alone did not make him the more suitable custodian.
Education. The trial court had presumed that the school in Qatar offered a superior education. Justice Dhar rejected this, observing that Delhi Public School is one of the prestigious institutions in this part of the world and that Qatar, while wealthy, is not an educational hub on par with countries like the United States or the United Kingdom, where higher education standards prompt thousands of Indian students to migrate. The Court noted that the respondent himself was educated in Srinagar, which enabled him to secure employment in Qatar — undermining his assertion that Kashmiri educational standards are inferior. The elder son, presently aged nine and promoted to Class 3, had scored 97.9% in Class 2, demonstrating good academic progress.
Acquittal of the father. The Court examined the Qatar appellate court's order dated 28 March 2022 and found that the original conviction for physical assault was set aside not on merits but because the public prosecutor had not initiated a criminal proceeding on the complaint — the mother had only applied for a restraint order. The acquittal therefore did not materially alter the position in the father's favour.
Non-payment of alimony. The Qatar court had directed the respondent to pay 3,000 riyals as comprehensive monthly alimony for the minor children. He had not paid this. When confronted, he produced receipts showing expenditure of approximately ₹30,000 on the children over four years — covering vaccinations and ophthalmological treatment. The Court found this inadequate. The respondent had further obtained an order from the Qatar court dated 29 April 2025 revoking even this maintenance obligation in respect of the children. The Court held that this reflected badly on the father's conduct and exposed his offer — to deposit ₹25 lakh with the Registry if the children were relocated to Qatar — as conditional rather than an expression of genuine paternal commitment.
The Children's Preference and the Court's Interaction
The trial court had formed an impression from its interaction with the children that they were more inclined towards their father and willing to accompany him to Qatar. The mediation report filed during the Supreme Court proceedings also reflected the children expressing inclination towards the father.
Justice Dhar had his own interaction with the children for approximately 40 minutes after arguments concluded. The younger child, while appearing more inclined towards the father, categorically stated that he cannot live with his father in the absence of his mother. Because of his tender age, the younger child was not fully aware of the surrounding circumstances and was more engaged in playing around the chamber.
The elder child was more receptive. He said he enjoyed the love of both parents and would love to be with both, but acknowledged that was not possible because of the divorce. He stated he had now settled in Kashmir and made friends in school. He said he would love to travel to Qatar to meet his father during vacations. He had very little memory of life in Qatar and was not comfortable with the idea of studying there again. The Court, which initially suspected that the elder child may have been tutored by his mother, came to be convinced as the conversation progressed that he was expressing independent views.
On the positive conduct of the mother, Justice Dhar made a specific observation: throughout the proceedings, she had not tutored or poisoned the children against their father. Whenever asked to hand over temporary custody to the father during the proceedings, she did so voluntarily, without any court order. The Court held that this conduct was a determinative factor in the custody contest.
By contrast, the father's conduct in failing to pay maintenance, obtaining revocation of the maintenance order, and making conditional offers was described as reflecting an ego-driven approach rather than paternal concern.
Practical Enforceability and Both Grandparents in Srinagar
Justice Dhar identified two further structural reasons against transferring custody to Qatar. The father is a citizen of India with no permanent residency in Qatar. If the children were sent to Qatar, the mother's visitation rights — which could not be denied — would be practically impossible for the Court to monitor. The Court observed that if the father genuinely wished to be close to his children, he had the option of taking up employment in India.
Additionally, both sets of grandparents — maternal and paternal — reside in Srinagar. The children, while remaining with their mother in Kashmir, would have the guidance and company of both sets of grandparents. The father could visit Srinagar as often as he wished during the year and spend time with the children under court-ordered arrangements.
Order
Justice Sanjay Dhar set aside the judgment dated 2 January 2025 of the Additional Judge, Family Court, Srinagar, and dismissed the respondent-father's petition under Section 25 of the Guardian and Wards Act. Custody of both minor children continues with the appellant-mother.
The following visitation and temporary custody arrangement was directed:
(1) The respondent-father is entitled to interim custody of the children during summer and winter vacations. He may spend the vacation with them at Qatar or Srinagar, as he chooses. If he intends to take them to Qatar, he must inform the Court and the children's visas shall be obtained only for the duration of the vacation.
(2) The respondent-father shall have interim custody of the children on the eve of Eid, if he happens to be in Srinagar during the festival.
(3) The respondent-father shall have the right to contact the children three times a week by phone or video call at mutually convenient times, and the mother shall facilitate this without hindrance.
(4) Whenever the respondent-father visits Kashmir, he shall be entitled to interim custody of the children for not more than two days at a stretch, without interfering with their schooling.
The arrangement shall remain in force for two years in the first instance. Both parties are at liberty to approach the Court before that period if there is difficulty in implementation or any change in circumstances.