SRINAGAR: The Jammu Kashmir and Ladakh High Court has upheld the dismissal of a father’s plea seeking custody of his minor daughter, holding that the custody petition was rightly filed before the court having jurisdiction over the child’s ordinary place of residence.
Justice Rajesh Sekhri dismissed the appeal filed by Nisar Ahmad Bhat against a July 21, 2026 order of the Principal District Judge, Anantnag, which had rejected his custody petition for want of territorial jurisdiction.
The court noted that the minor daughter had been living with her mother in Srinagar since 2024 after the mother remarried, and was also receiving education there. Given the child’s continued residence in Srinagar for a considerable period, the High Court held that there was no merit in the father’s contention that the mother had deliberately shifted the child to defeat the jurisdiction of the Anantnag court.
The dispute arose after the parties’ marriage was dissolved through a settlement before the National Lok Adalat on December 11, 2021. Under the settlement, custody of their daughter was entrusted to the mother until the child attained puberty or the mother remarried, whichever occurred earlier.
The father subsequently approached the Principal District Judge, Anantnag, seeking custody. The mother opposed the petition, arguing that the child ordinarily resided in Srinagar and that Section 9 of the Guardians and Wards Act, 1890, required a custody or guardianship application to be filed before the court having jurisdiction over the place where the minor ordinarily resides.
The High Court relied on the Supreme Court’s ruling in Ruchi Majoo v Sanjeev Majoo, holding that the decisive test under Section 9 is the minor’s “ordinary residence”, which is primarily a question of fact and intention.
Justice Sekhri also considered the father’s argument that the mother’s remarriage had ended her right of Hizanat, or physical custody, under Muslim personal law. The court held that the question of whether the mother had lost her custody rights following remarriage concerned the merits of the custody dispute and had to be determined by the competent court, keeping the child’s welfare and best interests paramount.
The judgment referred to several Supreme Court rulings, including Tejaswini Gaud v Shekhar Jagdish Prasad Tewari, Vasudha Sethi v Kiran V Bhaskar and Arathy Ramachandran v Bijay Raj Menon, to reiterate that parental rights under personal law or agreements between parents cannot override the welfare of a minor.
“Welfare of a minor remains the dominant consideration throughout,” the court observed, noting that the concept extends beyond physical wellbeing to the child’s moral wellbeing as well.
The High Court accordingly found no illegality or impropriety in the Anantnag court’s order and dismissed the appeal in limine on September 28, 2026.
