SRINAGAR: The Jammu and Kashmir and Ladakh High Court has set aside a Family Court order granting custody of two minor children to their father and directed that the children continue to remain in the custody of their mother, holding that their welfare would be better served by remaining in Kashmir. Justice Sanjay Dhar, in a judgment pronounced on August 14, 2026, however, granted the father extensive visitation and temporary custody rights during vacations, Eid and his visits to Kashmir.
The judgment in FAO (MAT) No. 01/2025, Sana Aftab v. Mohtashem Billah Malik, was reserved on July 9 and pronounced on August 14 by Justice Sanjay Dhar at Srinagar. Sana Aftab, the appellant-mother, was represented by Senior Advocate Altaf Naik, assisted by advocates Shabir Ahmad Najar and Seerat. The respondent-father, Mohtashem Billah Malik, was represented by Senior Advocate Altaf Haqani, assisted by advocates Shakir Haqani and Asif Wani.
The case concerns the custody of the couple’s two sons, Malik Karim Billah, born on October 17, 2017, and Malik Rahim Billah, born on November 4, 2019. The couple married in Srinagar on July 28, 2015, and moved to Qatar after their marriage, where the father was working as an electrical engineer. Their marriage was dissolved by a Qatar court on March 29, 2022. The Qatar court, while dissolving the marriage, had directed that physical custody of the two children be handed over to the mother.
The mother subsequently shifted to Kashmir with the children in August 2022. The father then approached the J&K High Court, alleging that the children were being kept in illegal custody. That petition was dismissed. A subsequent appeal before an LPA Bench was settled after the mother undertook to return to Qatar with the children and take steps concerning their residency documents.
The mother did travel to Qatar but later returned to Kashmir. The father subsequently filed a petition under Section 25 of the Guardians and Wards Act, 1890, seeking custody of the children. The Family Court, Srinagar, allowed his petition and directed that custody be handed over to him, subject to conditions.
The mother challenged that decision before the High Court. In its earlier judgment of September 8, 2025, the High Court had allowed her appeal and set aside the Family Court’s order. It had observed that custody could not be changed merely as a punitive measure for the mother’s conduct or because the father was financially better off, and that removing the children from their settled environment in Kashmir could adversely affect their welfare.
The father then approached the Supreme Court. In a judgment dated February 4, 2026, the Supreme Court set aside the High Court’s September 2025 judgment and remanded the matter for reconsideration. The Supreme Court specifically directed consideration of factors including the conduct of both parents, their financial capacity, standard of living, the children’s comfort and education, and the circumstances in which the mother had relocated the children from Qatar to India.
In reconsidering the case, Justice Dhar examined the mother’s conduct in obtaining fresh travel documents for the children and bringing them to India. The court held that although the violation of court directions could not be condoned, it did not, in the circumstances of the case, automatically disqualify her from custody.
The court observed that the circumstances in which the mother had taken the children from Qatar had to be examined carefully and held that her conduct “would not by itself disentitle her from holding the custody of the minor children, if otherwise, it is in best interests of their welfare.”
The court also considered the father’s substantially stronger financial position. It held that financial capacity and standard of living could be considered but could not become the predominant basis for deciding custody. The court emphasised the established principle that the welfare of the children, rather than the rights of either parent, is the controlling consideration in custody matters.
The High Court also took note of the fact that the father had been ordered by the Qatar court to pay 3,000 riyals a month towards the children’s maintenance but had not paid the amount. The court noted that, apart from certain medical expenses, the father had not contributed towards the children’s upbringing, food, clothing and education since their relocation to Srinagar in 2022.
The court was particularly critical of the father’s offer to pay Rs 25 lakh if the children were relocated to Qatar. It said such an offer should not be conditional.
“A father is not expected to make offers for maintaining his children on conditions,” the court observed, adding that the love of a father towards minor children “has to be unconditional and unqualified”.
Another consideration was the practical difficulty of ensuring the mother’s visitation rights if the children were moved to Qatar. The court noted that the father resides in Qatar while the children are Indian citizens and that he himself does not have permanent residency there. If the children were relocated, the court said, monitoring the mother’s visitation rights would become difficult.
The court also noted that the children had settled into life in Kashmir, were benefiting from the company of both maternal and paternal grandparents residing in Srinagar and were progressing well academically. The elder child, the court noted, had been promoted to Class III and had scored 97.9 per cent in Class II. Relocating the children to Qatar after they had settled into the culture and environment of Kashmir, the court held, could expose them to “another psychological trauma” and would not be in their best interests.
Justice Dhar ultimately held that the Family Court’s judgment was “unsustainable in law” and set it aside. The father’s petition under Section 25 of the Guardians and Wards Act was dismissed, and custody of the children was directed to continue with the mother.
The High Court, however, did not sever the father’s relationship with the children. It directed that he would have interim custody during the summer and winter vacations, either in Qatar or Srinagar. If he takes the children to Qatar during vacation, he must inform the High Court and obtain visas only for the vacation period. He will also have interim custody on the eve of Eid if he is in Srinagar, and can have custody for up to two days at a stretch whenever he visits Kashmir, without affecting the children’s schooling.
The father was further granted the right to speak to the children by telephone or video call three times a week, with the mother directed to facilitate such contact without hindrance. The arrangement will remain in force for two years initially, with either party free to approach the High Court earlier in case of difficulties in implementation or a material change in circumstances.
