Supreme Court Remands Custody Dispute for Fresh Hearing, Emphasises Welfare Plus Relevant Factors

A bench of Justices Pankaj Mithal and S.V.N. Bhatti heard an appeal arising out of a guardianship and custody contest between parties who were earlier divorced by a Qatari court; the challenge concerned a High Court order restoring custody of two minor sons to their mother and setting aside a Family Court order granting custody to the father. The appeal raised the question of whether the High Court had erred in discounting material facts, including foreign court orders, contempt findings and the conduct of the parties, while determining the welfare of the children.

The Supreme Court allowed the appeal, set aside the High Court judgment dated 08.09.2025 and remanded the matter to the High Court for fresh consideration within four months. The Court held that while “the paramount consideration is the welfare of the children,” other factors remained relevant and could not be ignored. The Court, in its reasoning, observed: “What we clearly notice from the above is that there is no dispute with the proposition that in matters of custody, the paramount consideration is the welfare of the children but nonetheless there are a host of other factors which weigh before the court while passing the final order of custody. These host of factors may include the conduct of the parties, their financial capacity, their standard of living, as well as the comfort and education of the children. Therefore, it may not be entirely correct on the part of the High Court in holding that such factors are not very relevant and that the custody of the minors has to depend upon their welfare alone.” The Court further noted that certain material aspects “were highly relevant for passing an order of custody,” including the revocation by the Qatar court of the mother’s custody order and a contempt finding against her; the contempt order had “attained finality” and was consequential.

Background The dispute concerned two minor sons born to the married couple while they resided in Qatar. The parties obtained a judicial divorce in Qatar on 29.03.2022, with custody initially given to the mother and guardianship to the father; the Qatari decree required the father to retain the children’s passports. The mother travelled to India in August 2022 and allegedly removed the minors from Qatar mid-academic session, purportedly using fresh or duplicate passports and without the father’s consent or Qatari court permission. The father filed habeas corpus proceedings and subsequent proceedings in India; an LPA in the Jammu & Kashmir and Ladakh High Court was disposed on the mother’s undertaking to return to Qatar by 02.01.2023 for the elder son’s education. The mother failed to honour the undertaking. The Qatar court, on 31.10.2023, revoked the mother’s custody order and ordered custody to the father. Contempt proceedings in Srinagar found the mother guilty for violating her undertaking and imposed a token fine; that order attained finality.

The father later obtained custody from the Family Court, Srinagar on 02.01.2025. The High Court, on appeal, reversed the Family Court on 08.09.2025 and restored custody to the mother, focusing on the welfare of the children and treating other factors as irrelevant. The Supreme Court found that the High Court had failed to consider material factors including the mother’s conduct in removing the children mid-session, the effect of the Qatar court’s revocation of custody, the contempt finding, mediation report showing the children’s inclination toward their father and concerns about disruption to their education. The Court recorded that these cumulative factors were necessary and relevant to the custody determination. The Supreme Court ordered that the High Court’s judgment be set aside and the matter be remanded for reconsideration on merits; the civil appeal was allowed with no order as to costs and the remand direction asked for expeditious disposal preferably within four months.

Case Details: Case No.: Civil Appeal No. — of 2026 (Arising out of S.L.P. (C) No.28934 of 2025) Case Title: Mohtashem Billah Malik v. Sana Aftab Appearances: For the Petitioner(s): Ms. Meenakshi Arora, Senior Counsel For the Respondent(s): Mr. Altaf Hussain Naik, Senior Counsel