LexMOHTASHEM BILLAH MALIK versus SANA AFTAB
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[2026] 2 S.C.R. 352 : 2026 INSC 118 Mohtashem Billah Malik v. Sana Aftab (Civil Appeal No. 771 of 2026) 04 February 2026 [Pankaj Mithal* and S.V.N. Bhatti, JJ.] Issue for Consideration Matter pertains to the dispute regarding the custody of two minor sons born to the appellant-husband and the respondent-wife. Headnotes† Guardians and Wards Act, 1890 – s.25 – Custody of minors – Appellant-husband and respondent-wife, both Indian citizen married under Muslim Personal Law and shifted to Qatar – Matrimonial dispute between them, culminating in divorce and the custody of the minors given to the wife while guardianship given to the husband by the Qatar court – Allegedly, the wife removed the minors from Qatar to India during their academic session, without the knowledge and consent of the husband, without obtaining the original passports, and without prior permission from Qatar Courts – Thereafter, husband filed habeas corpus petition as also petition u/s.25 seeking custody of the minor – Family court granted custody to the father – However, the High Court set aside the same and granted custody to the mother – Correctness: Held: In matters of custody, the paramount consideration is the welfare of the children but nonetheless there are other factors- conduct of the parties, their financial capacity, their standard of living, as well as the comfort and education of the children which weigh before the court while passing the final order of custody – Thus, not correct on the part of the High Court in holding that such factors not very relevant and that the custody of the minors has to depend upon their welfare alone – High Court while granting the custody to respondent-wife did not consider the effect and * Author [2026] 2 S.C.R. 353 Mohtashem Billah Malik v. Sana Aftab impact of the conduct of the respondent-wife having travelled and moved the minors to India without the permission of the Court, and without the consent of the appellant-father, who was guardian and without obtaining the original passports from him but rather by procuring fake or duplicate or fresh passports; failed to consider the order of the Qatar Court revoking the custody order in favour of the respondent-wife; order of the Contempt Court holding the respondent-wife guilty of committing contempt of the court for violation of her own undertaking given to the High Court that she will return to Qatar for the continuation of the minor’s education but travelled alone leaving the minors behind in India; the Qatar Court order giving clean chit to husband as regards conviction for assault; and the findings recorded by the Family Court, Srinagar indicating that the minor children had shown inclination to accompany the appellant-father to Qatar as also the mediation report, that both children appearing comfortable with the prospect of being without their mother – While these aspects may not, by themselves, be the sole reason for determining custody, they are nevertheless necessary and relevant factors, and their cumulative effect was at least relevant for determining the custody arrangement – Impugned judgment and order passed by the High Court cannot be sustained in law and is set aside – Matter remanded to the High Court for reconsideration. [Paras 22-33] List of Acts Guardians and Wards Act, 1890. List of Keywords Custody of two minor sons; Custody of minors; Muslim Personal Law; Matrimonial dispute; Divorce; Guardianship; Qatar court; Original passports; Prior permission from Qatar Courts; Habeas corpus petition; Family court; Welfare of the children. Case Arising From CIVIL APPELLATE JURISDICTION: Civil Appeal No. 771 of 2026 From the Judgment and Order dated 08.09.2025 of the High Court of Jammu & Kashmir and Ladakh at Srinagar in FAO(MAT) No. 01 of 2025 354 [2026] 2 S.C.R. Supreme Court Reports Appearances for Parties Advs. for the Appellant(s): Ms. Meenakshi Arora, Sr. Adv., Prosenjeet Banerjee, Ms. Nidhi Mohan Parashar, Soayib Qureshi, Vikrant Kumar. Adv. for the Respondent(s): Altaf Hussain Naik, Sr. Adv., Mrs. Shamama Anis, Atif Suhrawardy, Syed Mehdi Imam, Tashriq Ahmad, Tabrez Ahmad, Shabir Ahmad Najar, Ms. Saba Altaf, Pankaj Kumar. Judgment / Order of the Supreme Court Judgment Pankaj Mithal, J. 1. Leave granted. 2. This appeal is in relation to an unfortunate dispute regarding the custody of two minor sons namely Malik Karim Billah born on 17.10.2017 and Malik Rahim Billah born on 04.11.20
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