Kiran Raj

The Supreme Court Division Bench of Justice Pankaj Mithal and Justice S.V.N. Bhatti set aside a Jammu and Kashmir High Court decision that had ordered custody of two minor boys to be restored to their mother and remitted the matter to the High Court for fresh consideration on merits. The Court said that while a child’s welfare remains the paramount consideration, custody adjudication cannot turn on welfare alone, and courts must also weigh factors such as parental conduct, financial capacity, standard of living, and the children’s comfort and education.

The appeal arose out of a custody dispute between estranged spouses concerning their two minor sons. The parties, Indian citizens, were married in 2015 and resided in Qatar, where the children were born. Following matrimonial discord, divorce proceedings were initiated before the Family Court at Qatar, culminating in a decree of judicial divorce in March 2022. Custody of the minors was granted to the mother, while guardianship remained with the father. The father retained custody of the children’s passports.

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In August 2022, the mother travelled to India with the children. The father alleged that the relocation occurred during the academic session without his consent and without permission of the Qatar court. He initiated habeas corpus proceedings before the High Court of Jammu & Kashmir and Ladakh. An undertaking was recorded from the mother to return to Qatar before the reopening of school in January 2023. She did not take the children back.

Subsequently, the Qatar court revoked the mother’s custody in October 2023. Contempt proceedings were also initiated in Srinagar, resulting in a finding of guilt against the mother for violation of her undertaking. The father thereafter filed proceedings under Section 25 of the Guardians and Wards Act, 1890 before the Family Court, Srinagar, which granted him custody. The High Court reversed that order, restoring custody to the mother, leading to the present appeal.

The Court observed that “there is no dispute with the proposition that in matters of custody, the paramount consideration is the welfare of the children but nonetheless there are a host of other factors which weigh before the court while passing the final order of custody.” It recorded that “these host of factors may include the conduct of the parties, their financial capacity, their standard of living, as well as the comfort and education of the children.” It further stated that “it may not be entirely correct on the part of the High Court in holding that such factors are not very relevant and that the custody of the minors has to depend upon their welfare alone.”

Regarding the conduct of the mother, the Court recorded that she had travelled and moved the minors to India without consent and without obtaining the original passports. It observed, “the impact of the aforesaid conduct of the respondent-wife was a material aspect which ought to have been considered by the High Court while passing the order of the custody.”

On the effect of the Qatar court’s order, the Court stated that “the revocation of the order of custody was a crucial material for the purpose of determining the custody of the children.” It noted that “there was no subsisting order of custody of children in favour of the respondent-wife; rather, there was an order in favour of the appellant-husband appointing him as the guardian of the minors.” The Court added, “all these aspects were highly relevant for passing an order of custody of the minors.”

With respect to contempt proceedings, the Court recorded that “the aforesaid contempt order has attained finality and is conclusive, and as such, the respondent-wife cannot resile from her guilty conduct.”

Referring to the mediation report, the Court recorded that “both children expressed an inclination towards joining their father.” It further noted that “the younger child repeatedly expressed his wish to go with the father and was visibly distressed during the interaction.” The Court observed that the High Court had “completely ignored the aforesaid material and crucial aspects while passing the impugned order.”

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The Court directed, “the impugned judgement and order dated 08.09.2025 passed by the High Court of Jammu & Kashmir and Ladakh cannot be sustained in law and is liable to be set aside. Accordingly, it is hereby set aside and the matter is remanded to the High Court for reconsideration on its own merits in accordance with the law most expeditiously, preferably within a period of four months from the day a certified copy of this order is placed before the court concerned.”

Advocates Representing the Parties

For the Petitioners: Ms. Meenakshi Arora, Senior Counsel

For the Respondents: Mr. Altaf Hussain Naik, Senior Counsel

Case Title: XXX. VS YYY

Case Number: Civil Appeal No. of 2026 (Arising out of S.L.P. (C) No.28934 of 2025)

Bench: Justice Pankaj Mithal and Justice S.V.N. Bhatti