Mohtashem Billah Malik v. Sana Aftab

 Custody determination must holistically assess welfare; courts cannot ignore wrongful removal of children, contemptuous conduct, or foreign court orders revoking custody.

 

Background

The parties, Indian citizens married under Muslim personal law, resided in Qatar where their two minor sons were born. Upon matrimonial discord, the Qatar Family Court granted judicial divorce in March 2022, awarding custody to the mother and guardianship to the father, with passports to remain with the father. In August 2022, the mother removed the children to India mid-academic session without the father’s consent, original passports, or court permission, and later violated an undertaking before the J&K High Court to return to Qatar. The Qatar Court consequently revoked custody in October 2023 and granted custody to the father. The Family Court, Srinagar granted custody to the father under s. 25 Guardians and Wards Act, 1890, but the High Court reversed it, restoring custody to the mother.

 

Issues Framed

Whether the High Court erred in restoring custody to the mother by overlooking material factors such as wrongful removal of children, violation of undertakings, contempt findings, and a foreign court’s order revoking custody.

 

Court’s Reasoning

1. Paramountcy of welfare—holistic assessment:
While the welfare of the child is paramount, it must be assessed holistically, considering conduct of parties, educational continuity, stability, and surrounding circumstances. The High Court erred in excluding these factors as irrelevant.
2. Wrongful removal & educational disruption:
The mother removed the children mid-session from Qatar without consent or permission and misrepresented schooling in India, causing educational disruption—material conduct bearing directly on welfare.
3. Effect of foreign court orders:
The Qatar Court’s order revoking custody due to the mother’s misconduct was a crucial factor. There was no subsisting custody order in her favour; guardianship stood with the father. Ignoring this was a serious error.
4. Contempt & violation of undertakings:
The mother was held guilty of contempt for violating her undertaking to return to Qatar for the children’s education. This final contempt finding was relevant and could not be brushed aside.
5. Children’s inclination & mediation material:
Reports indicated the children’s inclination to be with the father and their difficulties adjusting locally (language/cultural). While not decisive alone, their cumulative relevance was ignored by the High Court.
 

Decision

The appeal was allowed. The High Court’s judgment dated 08.09.2025 was set aside, and the matter was remanded to the High Court for fresh consideration on merits, to be decided expeditiously (preferably within four months). 

 

Ratio

In custody disputes, although child welfare is paramount, courts must consider all materially relevant factors—including wrongful removal, contemptuous conduct, educational disruption, and foreign court orders affecting custody—and cannot ignore such factors while determining welfare under s. 25 of the Guardians and Wards Act, 1890.

 

Case Details

• Citation: 2026 INSC 119 (Civil Appeal arising out of SLP (C) No. 28934 of 2025)
• Decided on: 04 February 2026
• Case Title: Mohtashem Billah Malik v. Sana Aftab
• Court: Supreme Court of India
• Bench: Pankaj Mithal J. and S.V.N. Bhatti J.

 

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