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Judgement Key Points

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 [p_24].

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 [p_25]. 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 [p_27].

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 [p_31][p_32].

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 [p_28][p_29].

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.
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2026 Supreme(SC) 128

PANKAJ MITHAL, S. V. N. BHATTI
Mohtashem Billah Malik – Appellant
Versus
Sana Aftab – Respondent





Advocates appeared:
For the Petitioner(s): Ms. Meenakshi Arora, Sr. Adv. Mr. Prosenjeet Banerjee, Adv. Ms. Nidhi Mohan Parashar, AOR Mr. Soayib Qureshi, Adv. Mr. Vikrant Kumar, Adv. Mr. Aditya Krishna, Adv. Ms. Kavya Singh, Adv. Ms. Anushri Joshi, Adv. Ms. Anshika Sharma, Adv. Mr. Amar Bajpayee, Adv.
For the Respondent(s): Mr. Altaf Hussain Naik, Sr. Adv. Mr. Syed Mehdi Imam, AOR Mr. Atif Suhrawardy, Adv.

Headnote: Read headnote

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

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