Tacit Legal 19 - Feb - 2026
Supreme Court of India has reiterated that while the welfare of the child remains the paramount consideration in custody matters, it is not the sole factor governing adjudication. Courts must also evaluate a host of other relevant circumstances such as: Conduct of the parents, Financial capacity, Standard of living, Comfort and educational stability of the children In doing so, the Court set aside a judgment of the High Court of Jammu & Kashmir and Ladakh which had restored custody of two minor children to their mother solely on the premise that welfare alone was determinative.
A Bench comprising Justice Pankaj Mithal and Justice S.V.N. Bhatti observed: “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… Therefore, it may not be entirely correct… that the custody of the minors has to depend upon their welfare alone.”
Background of the Dispute:- The case arose from a long standing custody battle between a divorced couple, both Indian citizens, concerning their two minor sons born in 2017 and 2019.
Marriage and Divorce in Qatar:- The parties were married in 2015 in Srinagar under Muslim Personal Law. They resided in Qatar, where the husband was employed as an electrical engineer.
Divorce proceedings were initiated before the Family Court in Qatar. By judgment dated 29.03.2022, a decree of judicial divorce was granted. Custody of the children was granted to the mother.
Guardianship remained with the father:- Passports of the minors were to remain with the father.
Removal of Children to India:- In August 2022, the mother brought the children to India during their academic session allegedly: Without the consent of the father Without original passports, Without prior permission from the Qatar Court
This led to multiple legal proceedings:-
Habeas Corpus petition before the High Court
Contempt proceedings for violation of undertaking
Revocation of custody order by the Qatar Court
The Qatar Court, by order dated 31.10.2023, revoked the custody earlier granted to the mother on the ground that she had removed the children from its jurisdiction without permission.
Proceedings Before Indian Courts, :- Family Court, Srinagar
The father filed proceedings under Section 25 of the Guardians and Wards Act, 1890. On 02.01.2025, the Family Court granted custody to the father.
High Court Reversal
The High Court reversed the Family Court’s order on 08.09.2025, holding that:- Conduct of parties, Financial capacity, Standard of living, Preference of minors were not determinative factors, and that welfare alone governed custody.
Supreme Court’s Analysis
The Supreme Court found serious infirmities in the High Court’s approach. Welfare Is Paramount But Not Exclusive, The Court clarified that welfare is the governing consideration, but it is assessed through multiple lenses including:- Parental conduct, Educational continuity, Financial and emotional stability, Existing , custody orders, Judicial findings including contempt
Ignoring these aspects would amount to incomplete adjudication.
Conduct of the Mother Was a Material Factor:- The Court noted that the High Court failed to adequately consider: Removal of children mid-academic session, Violation of undertaking given to the High Court, Revocation of custody by Qatar Court, Contempt order against the mother, These were “material aspects” directly relevant to custody determination.
Educational Stability and Schooling:- The father argued that:
Children were studying in Qatar International School (British curriculum) They were withdrawn mid-session There were inconsistencies regarding school admissions in Srinagar
Attendance issues existed. The Supreme Court held that educational disruption is a relevant consideration and cannot be brushed aside.
Wishes of the Children:- The Court also noted mediation reports and counseling interactions indicating:- Inclination of children towards father, Comfort with relocation to Qatar, Language and adjustment concerns, Though not decisive alone, such factors must be cumulatively evaluated.
Case Details
Case Title: Mohtashem Billah Malik v. Sana Aftab
Court: Supreme Court of India
Bench: Justice Pankaj Mithal & Justice S.V.N. Bhatti
Date of Judgment: 04 February 2026
Nature: Civil Appeal (Arising out of SLP (C) No. 28934 of 2025)
Impugned Judgment: High Court of Jammu & Kashmir and Ladakh dated 08.09.2025
Disposition: High Court judgment set aside; matter remanded for fresh consideration
Counsel:
Senior Advocate Meenakshi Arora for the Appellant
Senior Advocate Altaf Hussain Naik for the Respondent
