Children Appeared Comfortable With Father: Supreme Court Quashes Order Granting Custody to Mother in Cross-Border Child Dispute
Children had expressed comfort with the father and willingness to accompany him
Justice Pankaj Mithal, Justice SVN Bhatti, Supreme Court
The Supreme Court has set aside a judgment of the High Court of Jammu & Kashmir and Ladakh that had restored custody of two minor children to their mother, holding that the High Court failed to consider crucial circumstances while applying the welfare-of-the-child principle. The matter has been remanded for fresh consideration within four months.
The Court also referred to counselling and mediation inputs indicating that the children had expressed comfort with the father and willingness to accompany him. The bench said that the High Court took a narrow approach, treating welfare in isolation from surrounding circumstances, was found legally unsustainable.
Accordingly, a bench of Justice Pankaj Mithal and Justice S.V.N. Bhatti observed, “As per the mediation report, both children expressed an inclination towards joining their father. Though they had limited or no conscious memory of life in Qatar, where they were born, they nonetheless conveyed a desire to explore and reside there. When specifically asked as to who would look after them in Qatar, the elder child stated that the presence of his father would be sufficient and that someone would inevitably be available to care for them. Both children appeared comfortable with the prospect of being without their mother. The younger child repeatedly expressed his wish to go with the father and was visibly distressed during the interaction. It was also recorded that both children speak only English, and found difficulty in conversing with local children”.
“The High Court has completely ignored the aforesaid material and crucial aspects while passing the impugned order. While these aspects may not, by themselves, be the sole reason for determining custody, they are nevertheless necessary and relevant factors, and their cumulative effect was at least relevant for determining the custody arrangement”, the court further observed.
Senior Advocate Meenakshi Arora appeared for the appellant, and Senior Advocate Altaf Hussain Naik appeared for the respondent.
The present matter pertained to two minor boys born and raised in Qatar, where both parents were residing. However, following a matrimonial dispute, a Qatar court had granted custody to the mother while guardianship remained with the father.
The mother later brought the children to Srinagar during the academic session, allegedly without the father’s consent, without original passports, and without prior permission of the Qatar court.
Pursuant to which proceedings followed in India under Section 25 of the Guardians and Wards Act, 1890, and a habeas corpus petition. The Family Court, Srinagar, granted custody to the father, but the High Court reversed that decision and restored custody to the mother.
Thus, allowing the father’s appeal, the Supreme Court reiterated that while the welfare of the child is paramount, it is not the sole factor in custody adjudication. Conduct of parents, educational stability, financial capacity, living conditions, and subsisting court orders are all relevant considerations.
The Bench noted that the High Court failed to account for key developments: the mother’s removal of the children from Qatar mid-session; the Qatar court’s order dated 31-10-2023 revoking her custody rights; a contempt finding by the Srinagar High Court for breaching her undertaking to return with the children; and the fact that no criminal conviction stood against the father abroad. These, the Court held, were material factors in assessing welfare.
The impugned judgment dated 08-09-2025 was accordingly quashed, and the matter remitted to the High Court for fresh decision in accordance with law.
Cause Title: X v. Y S.L.P. (C) No.28934 of 2025
Appearance:
Appellant: Meenakshi Arora, Sr. Adv., Prosenjeet Banerjee, Nidhi Mohan Parashar, AOR, Soayib Qureshi, Vikrant Kumar, Aditya Krishna, Kavya Singh, Anushri Joshi, Anshika Sharma, Amar Bajpayee, Advocates.
Respondent: Altaf Hussain Naik, Sr. Adv., Syed Mehdi Imam, AOR, Atif Suhrawardy, Advocates.