JAMMU: The High Court of Jammu & Kashmir and Ladakh has restored the interim custody of a six-year-old girl to her mother, holding that the welfare of the child, not unproven allegations exchanged between estranged parents, must remain the paramount consideration in custody disputes. Setting aside a trial court order that had handed over the child to her father, the High Court ruled that it was impermissible to treat a pending criminal case as frivolous before its investigation had concluded and use that assumption as the basis for altering custody.
The judgment was delivered on July 2, 2026, by Justice Sanjay Parihar in MA No. 46/2025, Muskan @ Shagufta Kousar vs Ashu Raja, after interacting in chambers with the minor girl, Ayra Vohra, who the court described as “an intelligent, cheerful and cooperative child.”
The appeal challenged an order dated August 28, 2025, passed by the trial court in proceedings under the Guardians and Wards Act, whereby interim custody of the child had been transferred to the father on the ground that the mother had allegedly secured custody by misusing criminal proceedings against him.
Justice Parihar held that the trial court had committed a “jurisdictional error” by allowing itself to be influenced by observations regarding the alleged falsity of the criminal case lodged by the mother, even though the matter remained under investigation.
“The paramount consideration, at every stage, is the welfare and best interests of the minor child,” the court observed, adding that “allegations and counter-allegations exchanged between the parties in pending criminal or matrimonial proceedings cannot, by themselves, constitute the sole basis for determining the issue of interim custody.”
The parties, who profess different religions, first met in 2013. They married according to Hindu rites at Arya Samaj Mandir, Purani Mandi, Jammu, on May 29, 2015, and later solemnised their marriage under Islamic rites through a Nikah on June 12, 2019. They have a daughter, Ayra Vohra, who is about six years old.
The couple lived together until 2023 before matrimonial disputes led to multiple legal proceedings. On October 20, 2024, the mother lodged an FIR alleging marital rape against the father. The FIR is under investigation and has separately been challenged before the High Court in CRM(M) No. 938/2024.
According to the mother, she had filed a guardianship petition on May 31, 2024, apprehending that the father would forcibly remove the child. She alleged that the father took away the child on August 14, 2024, after which both remained untraceable until November 8, 2024. Following police intervention, the child was produced before the Child Welfare Committee, which restored custody to the mother after interacting with the child.
However, the trial court subsequently held that the father, as the natural guardian, had made out a prima facie case that the mother had obtained custody by abusing the criminal process and ordered that interim custody be handed over to him while granting the mother visitation rights.
The High Court found that the trial court had reached an unwarranted conclusion by presuming that the mother’s criminal complaint was false despite the investigation still being underway.
“It was not open to the learned trial Court to record even a prima facie finding that the criminal proceedings initiated by the petitioner were frivolous or false and to employ such a finding as the principal reason for altering the custody of the minor child,” Justice Parihar observed.
The court also noted that the child’s custody had been restored to the mother by the Child Welfare Committee after interacting with the child and not merely because an FIR had been registered.
Referring to settled legal principles, the court reiterated that while exercising jurisdiction under the Guardians and Wards Act, courts act as parens patriae, with the child’s welfare overriding the legal rights of either parent.
“The legal rights of the parents, including the preferential claim of a natural guardian under the personal law, are always subordinate to the welfare of the child,” the judgment said while relying on Supreme Court precedents including Gaurav Nagpal v. Sumedha Nagpal, Nil Ratan Kundu v. Abhijit Kundu, Mausami Moitra Ganguli v. Jayant Ganguli, Vivek Singh v. Romani Singh, and Roxann Sharma v. Arun Sharma.
The court further observed that custody proceedings are not meant to adjudicate matrimonial disputes or determine criminal culpability.
“Unproved allegations and counter-allegations cannot, by themselves, furnish a sound basis for altering the custody of a minor,” it said.
Justice Parihar also attached significance to the interaction with the child, observing that although the preference of a six-year-old is not conclusive, such interaction helps assess “the child’s emotional comfort, sense of security and overall well-being.”
The court noted that the child is of tender age, is attending school and requires continuity of care, emotional stability and educational consistency. It cautioned that abrupt changes in custody should ordinarily be avoided unless compelled by circumstances affecting the child’s welfare.
Allowing the appeal, the High Court set aside the trial court’s order dated August 28, 2025, and directed that interim custody of Ayra Vohra be restored to her mother pending final adjudication of the guardianship petition.
The father has been granted visitation and interim access rights on days and timings to be fixed by the trial court, keeping in view the child’s convenience and ensuring that she maintains a healthy relationship with both parents.
The High Court also directed the trial court to make every endeavour to dispose of the guardianship petition expeditiously, preferably within six months, without being influenced by any observations made in the present order, which were confined solely to deciding the appeal.
