Violation Of Court Orders Does Not By Itself Make A Mother “Bad Mother” Or Disentitle Her To Custody If Child Welfare Requires: J&K&L High Court
The Court while retaining the custody of two sons with the mother, reiterated that a father's greater financial capacity and standard of living "is not a guarantee" of a minor's welfare and cannot override the welfare principle.
Justice Sanjay Dhar, Jammu and Kashmir and Ladakh High Court
The Jammu & Kashmir and Ladakh High Court has held that a mother's conduct in relocating her children from Qatar to India in breach of a foreign court's custody conditions, and in breach of an undertaking given to the High Court itself, does not automatically disentitle her to custody, where the totality of circumstances shows that continued custody with her best serves the children's welfare. The Court accordingly dismissed the father's petition under Section 25 of the Guardian and Wards Act, 1890, and retained custody of the two minor sons with the mother, subject to defined visitation and vacation-custody arrangements for the father.
The Court reiterated that while a parent's financial capacity, standard of living, and the comfort or educational opportunities they can offer are relevant factors, none is determinative in isolation, and greater economic prosperity on the father's part is not, by itself, a guarantee of a minor's welfare or a reason to disturb custody otherwise warranted by the child's best interests.
Accordingly, the judgment came in a first appeal filed under the Guardian and Wards Act, arising after the Supreme Court set aside an earlier judgment of the same High Court and remanded the matter for fresh consideration of specific factors it found had not been adequately addressed.
A Single Judge Bench of Justice Sanjay Dhar observed, “…the appellant is guilty of violating not only the conditions imposed by the court at Qatar but also the condition imposed by the LPA Bench of this Court. However, this court is of the considered opinion that violation of the conditions imposed by this Court or by the court at Qatar would not by itself make the appellant a bad mother so as to disentitle her to claim the custody of the minor children if otherwise it is in the best interests and welfare of the children to be with their mother”.
Senior Advocate Altaf Naik appeared for the appellant and Senior Advocate Altaf Haqani appeared for the respondent.
The parties, who married in Srinagar in 2015 and relocated to Qatar, had two sons before their marriage was dissolved by a Qatar family court in 2022, which granted physical custody to the mother. Instead of remaining in Qatar, the mother relocated the children to Kashmir using freshly procured travel documents, prompting litigation before the High Court, including a contempt petition in which she was held guilty of breaching an undertaking to return to Qatar, and a subsequent revocation of her Qatar custody order for removing the children without that court's permission.
The father then filed a fresh petition before the Family Court, Srinagar, under Section 25 of the Guardian and Wards Act, seeking custody on the ground that relocation had jeopardised the children's education and psychological wellbeing; the Family Court ruled in his favour.
The High Court, in the first round of appeal, reversed the Family Court and restored custody to the mother, holding that custody could not be altered as a punitive measure or merely on account of the father's financial strength. The Supreme Court set this aside on the father's further appeal, remanding the matter with directions to specifically consider the mother's conduct, the impact of the Qatar court's revocation of her custody order, the contempt finding against her, and the children's expressed preferences.
On remand, the High Court examined each of these factors afresh. It held that the Qatar court's revocation of custody was founded on a technical violation rather than any adverse finding on the mother's fitness, and that the underlying merits determination in her favour survived. It found the father's claim of superior educational standards in Qatar unsubstantiated, noting the children were enrolled in a reputed Indian school and had shown strong academic performance.
The Court also recorded, from its own interaction with the children, that both were emotionally settled in Kashmir and unwilling to be separated from their mother, and it took adverse note of the father's failure to pay court-ordered alimony and his offer of maintenance being made conditional on relocation of the children to Qatar.
“…Greater economic prosperity of the father is not a guarantee of the welfare of a minor and it does not disturb the presumption in favour of the mother while deciding custody. So, merely because the respondent father earns a handsome income, does not ipso facto make him more suitable person to hold custody of the minor children. Similarly, the standard of living of the disputant parents, would not by itself be a factor to determine the dispute regarding custody of the minor children”, the Bench noted.
Accordingly, the Court set aside the Family Court's judgment, dismissed the father's petition, and directed that custody continue with the mother, while granting the father defined interim custody during vacations and Eid, telephonic contact rights, and short-duration custody during visits to Kashmir, for an initial period of two years.
Cause Title: Sana Aftab v. Mohtashem Billah Malik (Neutral Citation: 2025:JKLHC-SGR:249)
Appearances:
Appellant: Altaf Naik, Senior Advocate, Shabir Ahmad Najar and Seerat, Advocates.
Respondent: Altaf Haqani, Senior Advocate, Shakir Haqani and Asif Wani, Advocates.