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SUPREME COURT OF INDIA
Pankaj Mithal, S.V.N. Bhatti, JJ.
Mohtashem Billah Malik – Appellant
Versus
Sana Aftab - Respondent
Civil Appeal No. 771 of 2026 (Arising out of S.L.P. (C) No. 28934 of 2025)
Decided On : 04-02-2026
Guardians and Wards Act, 1890 – Section 25 – Custody of minor children – In matters of custody, paramount consideration is welfare of children but there are a host of other factors which weigh before court while passing final order of custody – These host of factors may include conduct of parties, their financial capacity, their standard of living, as well as comfort and education of children – Respondent-wife had travelled and moved minors to India by procuring fake or duplicate or fresh passports while original already existed for travel purposes – Court below has not considered effect and impact of this conduct while granting custody to the respondent-wife – There was no subsisting order of custody of children in favour of respondent-wife; rather, there was order in favour of appellant-husband appointing him as guardian of minors – All these aspects were highly relevant for passing order of custody of minors – In a criminal case regarding abuse and assault filed against appellant-husband Qatar Court had given clean chit to him – Both children appeared comfortable with prospect of being without their mother – Younger child repeatedly expressed his wish to go with father – Impugned judgment and order set aside and matter remanded to High Court for reconsideration in accordance with the law. (Paras 22, 23, 24, 25, 28, 30, 32 and 33)
Facts of the case:
Present appeal is in relation to an unfortunate dispute regarding custody of two minor sons namely Malik Karim Billah born on 17.10.2017 and Malik Rahim Billah born on 04.11.2019 to appellant-husband and respondent-wife. Both appellant-husband and respondent-wife are Indian citizens and are well educated. They were married on 28.07.2015 in Srinagar in accordance with Muslim Personal Law. As appellant-husband was serving as an electrical engineer in Qatar since 2013, both of them started residing at Qatar immediately after marriage where aforesaid two sons were born to them out of wedlock.
Under challenge in this appeal is judgment and order of High Court dated 08.09.2025 by which order of Family Court granting custody of minors to the appellant-husband has been set aside and the custody has been ordered to be restored to the respondent-wife.
Findings of Court:
Impugned judgment and order dated 08.09.2025 passed by High Court of Jammu & Kashmir and Ladakh cannot be sustained in law and is liable to be set aside.
Result : Civil Appeal allowed.
The legal document clearly establishes that in matters of custody, the paramount consideration is the welfare of the children. However, it emphasizes that this is not the sole factor; a host of other relevant considerations must also be taken into account. These include the conduct of the parties, their financial capacity, standard of living, as well as the comfort and education of the children (!) .
The court highlights that conduct is highly relevant, especially actions that may impact the child's well-being, such as removing children from their jurisdiction without proper consent or legal procedures, and procuring duplicate or fake passports to facilitate such removal (!) . The impact of such conduct is a crucial aspect that should influence custody decisions.
Furthermore, the order of the court in a foreign jurisdiction revoking custody due to misconduct—specifically, the removal of children without consent or proper legal process—is a significant factor. This order reflects the seriousness of the misconduct and its relevance to the child's best interests (!) .
The court also underscores the importance of considering the child's expressed wishes, their comfort, and their relationship with each parent, especially when the children have shown a preference or inclination to stay with a particular parent or to move to a different jurisdiction (!) (!) .
Additionally, the impact of previous court orders and legal proceedings, including findings of contempt for misconduct, are relevant. The finality and conclusive nature of such orders mean that misconduct or breach of court undertakings can influence custody arrangements (!) (!) .
In sum, the legal principles derived from the document indicate that custody decisions should be based on a holistic assessment of the child's welfare, considering conduct, legal orders, and the child's preferences, among other factors. The court must evaluate these aspects collectively to arrive at an arrangement that serves the child's best interests.
JUDGMENT :
PANKAJ MITHAL, J.
1. Leave granted.
2. This appeal is in relation to an unfortunate dispute regarding the custody of two minor sons namely Malik Karim Billah born on 17.10.2017 and Malik Rahim Billah born on 04.11.2019 to the appellant-husband and the respondent-wife.
3. Both the appellant-husband and the respondent-wife are Indian citizens and are well educated. They were married on 28.07.2015 in Srinagar in accordance with the Muslim Personal Law. As the appellant-husband was serving as an electrical engineer in Qatar since 2013, both of them started residing at Qatar immediately after the marriage where the aforesaid two sons were born to them out of the wedlock.
4. Sometime later, on account of matrimonial discord, both of them preferred separate divorce petitions, namely, Case No.882/20211[Mohtashem Billah Malik Mohamed vs. Sanaa Aftab] and Case No.1300/20212[Sanaa Aftab vs. Mohtashem Billah Malek Mohamed] before the Family Court at Qatar. Both the petitions were decided by a common judgment and order dated 29.03.2022 and a decree of judicial divorce based on mutual abuse was granted. The appellant- husband was directed to pay alimony, enjoyment compensation, monthly child support, custodian payment and for payment of custodian accommodation. The custody of the minors was given to the respondent-wife while guardianship was given to the appellant-husband. At the same time, the appellant-husband was directed to deliver all personal documents of the minors to the respondent-wife including their IDs, Medical Certificates, Birth Certificates and any evidential documents of the children except the passports which were to remain in the custody of the appellant-husband being the guardian of the minors.
5. However, the respondent-wife travelled to India on 17/18.08.2022 by procuring fresh passports for the children or probably on the basis of duplicate or otherwise and started residing at Srinagar. Allegedly, the respondent-wife removed the minors from Qatar to India during their academic session, without the knowledge and consent of the appellant-husband, and without obtaining the original passports etc. or without prior permission from Qatar Courts.
6. The appellant-husband filed Habeas Corpus Writ Petition (Crl) No.636/2022 before the High Court of Jammu & Kashmir and Ladakh at Srinagar alleging that his minor sons are in illegal custody of the respondent-wife.
7. The aforesaid writ petition gave rise to LPA No.216/20223[Mohtashem Billah Malik vs. Union of India and Ors.]. The said LPA was disposed of on 01.12.2022 in the light of the statement made by the respondent-wife who was present in court and which was even reduced to writing and placed on record that she will go back to Qatar well before the reopening of the school of the elder son Malik Karim Billah on or before 02.01.2023 so that his education may not suffer and that she will undertake all necessary steps for obtaining residency permit for her younger son Malik Rahim Billah.
8. The aforesaid appeal having been disposed of in terms of the above statement, gave finality to the undertaking of the respondent-wife. The respondent-wife, for reasons best known to her, failed to keep her undertaking. She visited Qatar in the third week of December, 2022 but did not take the minors along with her.
9. In view of the violation of the aforesaid undertaking, the appellant-husband applied for the revocation of the custody of the minors which was given to the respondent-wife before the Qatar court. The said custody order of the minors in favour of the respondent-wife was revoked by the Qatar court on 31.10.2023 and the custody was ordered to be given to the appellant-husband. Thus, the custody of the minors in favour of the respondent-wife was terminated.
10. The appellant-husband simultaneously initiated proceedings for contempt in Srinagar vide CCP(D) No.4/2023 against the respondent-wife for violating the undertaking given by her on 01.02.2022 before the Division Bench in the LP
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