Child Custody — Welfare and Other Factors · 4 February 2026

Mohtashem Billah Malik v. Sana Aftab: Supreme Court Says Child Welfare Is Paramount but Not the Only Factor in Custody, Remands Case Over Children Taken From Qatar

Supreme Court of India · 2026 LiveLaw (SC) 115

The parties, both Indian citizens, married in Srinagar in 2015 and lived in Qatar, where their two sons were born in 2017 and 2019. A Qatar family court granted a divorce in March 2022, giving custody of the children to the mother and guardianship to the father. In August 2022 the mother took the children to Srinagar during the school session, without the father's consent or the original passports. The father's habeas corpus petition ended in December 2022 with her undertaking to return to Qatar by January 2023, which she did not keep; the Qatar court revoked her custody in October 2023, and in August 2024 a contempt court held her guilty and fined her a token ₹100. The Family Court at Srinagar granted the father custody in January 2025, but the High Court of Jammu & Kashmir and Ladakh reversed this in September 2025, holding that only the children's welfare mattered. The mother argued that the children were settled and doing well in school in Srinagar, and that financial capacity and conduct were not material.

A Bench of Justice Pankaj Mithal and Justice S.V.N. Bhatti held that welfare is paramount but that courts must also weigh the conduct of the parents, their financial capacity, standard of living, and the children's comfort and education. It found the High Court had not given due weight to the mother's conduct, the contempt finding, the Qatar order, and the mediation report in which both children said they wished to join their father. The Court did not itself decide custody: it set aside the High Court's judgment and remanded the case for fresh consideration on merits, preferably within four months.

More about this case →