Mohtashem Billah Malik vs Sana Aftab

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 04.11.2019 to

the appellant-husband and the respondent-wife.

3. Both the appellant-husband and the respondent-wife are

Indian citizens and are well educated. They were married on 1 28.07.2015 in Srinagar in accordance with the Muslim

Personal Law. As the appellant-husband was serving as an

electrical engineer in Qatar since 2013, both of them started

residing at Qatar immediately after the marriage where the

aforesaid two sons were born to them out of the wedlock.

4. Sometime later, on account of matrimonial discord, both of

them preferred separate divorce petitions, namely, Case

No.882/20211 and Case No.1300/20212 before the Family

Court at Qatar. Both the petitions were decided by a common

judgment and order dated 29.03.2022 and a decree of judicial

divorce based on mutual abuse was granted. The appellant-

husband was directed to pay alimony, enjoyment

compensation, monthly child support, custodian payment and

for payment of custodian accommodation. The custody of the

minors was given to the respondent-wife while guardianship

was given to the appellant-husband. At the same time, the

appellant-husband was directed to deliver all personal

documents of the minors to the respondent-wife including their

IDs, Medical Certificates, Birth Certificates and any evidential

1 Mohtashem Billah Malik Mohamed vs. Sanaa Aftab 2 Sanaa Aftab vs. Mohtashem Billah Malek Mohamed

2 documents of the children except the passports which were to

remain in the custody of the appellant-husband being the

guardian of the minors.

5. However, the respondent-wife travelled to India on

17/18.08.2022 by procuring fresh passports for the children

or probably on the basis of duplicate or otherwise and started

residing at Srinagar. Allegedly, the respondent-wife removed

the minors from Qatar to India during their academic session,

without the knowledge and consent of the appellant-husband,

and without obtaining the original passports etc. or without

prior permission from Qatar Courts.

6. The appellant-husband filed Habeas Corpus Writ Petition (Crl)

No.636/2022 before the High Court of Jammu & Kashmir and

Ladakh at Srinagar alleging that his minor sons are in illegal

custody of the respondent-wife.

7. The aforesaid writ petition gave rise to LPA No.216/20223. The

said LPA was disposed of on 01.12.2022 in the light of the

statement made by the respondent-wife who was present in

court and which was even reduced to writing and placed on

3 Mohtashem Billah Malik vs. Union of India and Ors. 3 record that she will go back to Qatar well before the reopening

of the school of the elder son Malik Karim Billah on or before

02.01.2023 so that his education may not suffer and that she

will undertake all necessary steps for obtaining residency

permit for her younger son Malik Rahim Billah.

8. The aforesaid appeal having been disposed of in terms of the

above statement, gave finality to the undertaking of the

respondent-wife. The respondent-wife, for reasons best known

to her, failed to keep her undertaking. She visited Qatar in the

third week of December, 2022 but did not take the minors

along with her.

9. In view of the violation of the aforesaid undertaking, the

appellant-husband applied for the revocation of the custody of

the minors which was given to the respondent-wife before the

Qatar court. The said custody order of the minors in favour of

the respondent-wife was revoked by the Qatar court on

31.10.2023 and the custody was ordered to be given to the

appellant-husband. Thus, the custody of the minors in favour

of the respondent-wife was terminated.

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10. The appellant-husband simultaneously initiated proceedings

for contempt in Srinagar vide CCP(D) No.4/2023 against the

respondent-wife for violating the undertaking given by her on

01.02.2022 before the Division Bench in the LPA. The

Contempt Court vide Order dated 06.08.2024 held the

respondent-wife to be guilty of not honouring the commitment

given by her to the court and for not even expressing any

remorse for her conduct. Therefore, the court held her guilty of

committing contempt of the court and sentenced her with a

token fine of Rs.100/- to be deposited with the Registrar

Judicial of the court within one month. She was issued warning

to remain careful and conscious in future while making any

statement and giving undertaking to the court. Since the LPA

was disposed of in terms of the undertaking which has been

violated by her, the LPA was ordered to be restored for

consideration on merits.

11. This being the background, the appellant-husband initiated

fresh proceedings before Family Court, Srinagar under Section

25 of the Guardians and Wards Act, 1890, seeking custody of

the two minor children. The Family Court on 02.01.2025

5 allowed the petition and granted custody of the minors to the

appellant-husband. The said order of the Family Court has

been reversed by the High Court in appeal preferred by the

respondent-wife vide judgment and order dated 08.09.2025.

12. Under challenge in this appeal is the aforesaid judgment and

order of the High Court dated 08.09.2025 by which the order

of the Family Court granting custody of the minors to the

appellant-husband has been set aside and the custody has

been ordered to be restored to the respondent-wife.

13. We have heard Ms. Meenakshi Arora, senior counsel for the

appellant-husband and Mr. Altaf Hussain Naik, senior counsel

for the respondent-wife.

14. Ms. Meenakshi Arora, senior counsel appearing for the

appellant-husband had argued that the respondent-wife had

removed the minors from Qatar in the middle of their academic

session. The elder son Malik Karim Billah at the relevant time

was studying in the Qatar International School4 (a Gold

Standard British Curriculam School) and the younger son

Malik Rahim Billah in the Grandma British Nursery School.

4 In short ‘QIS’

6 They travelled to India leaving their education in between on

17/18th August 2022. The respondent-wife misled the court by

alleging that she had admitted the minors in a school i.e.

Foundation Word School in Srinagar. She even produced

documents claiming that Malik Karim Billah was studying at

Alama Iqbal Institute of Education, Srinagar in Class II.

However, the admission form of Delhi Public School5 reveal that

the elder son Malik Karim Billah who was admitted there on

19.03.2024 had last attended QIS, Qatar, before being

admitted to DPS in Class I, and the children were never

admitted to Alama Iqbal Institute of Education, Srinagar, which

happened to be a school run by the relatives of respondent-

wife. The very fact that the respondent-wife removed the

children from the school at Qatar in between the session and

admitted them in DPS only in March 2024, means that for two

years the children were not sent to any school.

15. It is also argued that even in DPS the attendance of the children

is only about 60% as against the mandatory requirement of

75%. The said conduct of the respondent-wife making the

5 In short ‘DPS’

7 education of the children suffer disentitles her the custody of

the minors. A further argument was made that in view of the

various precedents of this Court, a parent who is indulging in

doing a wrong by removing a child from a school mid-session

and shifting to another country cannot take advantage of his/

her own wrongdoing.

16. The second argument of Ms. Meenakshi Arora is that the

children, especially the elder one is quite grown up and capable

of taking an intelligent decision. Therefore, in view of the report

of the counselor of the Family Court submitted in the contempt

proceedings who had met the children a number of times and

opined that the children had a more comfortable relationship

with the father, coupled with the fact that even the witnesses

produced by the respondent-wife admitted that the children

were not comfortable in Srinagar and were unhappy to

continue to live there. The custody ought to be restored to the

appellant-father and the minors be allowed to travel to Qatar

with him.

17. She next argued that not only the conduct of the respondent-

wife, but also failure on her part to furnish any plausible

8 explanation for shifting the children mid-session from Qatar to

Srinagar, and that too without obtaining the consent of the

appellant-husband and the original passports from him, is

sufficient enough to disentitle her to the custody of the minors.

18. Lastly, she submitted that the work schedule of the

respondent-wife clearly shows that she is required to travel to

different parts of India in connection with her work, thereby

leaving the children and their education at stake, and hence,

tilts the scale of custody of the minors in favour of the

appellant-husband, who has a flexible work schedule with an

option to work from home enabling him to take care of the

minors himself.

19. Per contra, Shri Altaf Hussain Naik, senior counsel appearing

for the respondent-wife, submitted that there is no error or

illegality in the judgement and order passed by the High Court,

as in matters of custody the paramount interest is the welfare

of the children and the High Court has repeatedly emphasized

that the welfare of the children is best served in the hands and

care of the respondent-wife. He further submitted that the

financial capacity of the appellant-husband or the conduct of

9 the respondent-wife is not very material while deciding the

custody of the children, as the welfare and interest of the

minors outweighs all these aspects. He lastly submitted that

both the children are settled and studying in a reputed school

in Srinagar and that their annual progress report is more than

satisfactory, and thus it cannot be said that their education is

lacking in any manner or is suffering on account of their

shifting from Qatar to India.

20. The High Court while passing the impugned judgement has

proceeded on the premise that the Family Court had restored

the custody of the minors to the appellant-father primarily on

the conduct of the parties, the standard of living and income of

the parents, and lastly, on the age and gender of the minors

and the preference shown by them. The High Court held that

none of the above aspects are relevant for deciding the custody

of the minors and that the paramount consideration is only the

welfare of the children.

21. The High Court further recorded that, although the minors may

have exhibited an inclination to stay with their father and to

accompany him to Qatar, much importance cannot be attached

10 to such gestures of the children, as after the conclusion of the

hearing and reserving the judgement, the Court had interacted

with the minors in chambers for about 40 minutes (in the

absence of the parents) and noticed that the elder child did not

express any resentment towards either of the parents. Further,

in response to the query as to who would look after him while

in Qatar, the elder child responded by saying that probably a

maid would do so. As such, the Court went on to hold that the

inclination of the children was also not very clear as to whether

they wished to accompany the appellant-father to Qatar.

22. We have gone through the entire judgement and order passed

by the High Court in the light of the submissions advanced by

the parties and have also perused the documents on record.

What we clearly notice from the above is 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. These

host of factors may include the conduct of the parties, their

financial capacity, their standard of living, as well as the

11 comfort and education of the children. Therefore, 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.

23. The High Court while writing the opinion had referred to the

fact that the respondent-wife had travelled and moved the

minors to India 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 while original already existed for travel

purposes. However, the court below has not considered the

effect and impact of this conduct while granting the custody to

the respondent-wife.

24. We are of the opinion that 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.

25. Secondly, the High Court completely failed to consider the

impact of the judgement and order of the Qatar Court dated

31.10.2023, by which the custody order in favour of the

12 respondent-wife was revoked for the reason that she

misconducted herself by removing the children from the

jurisdiction of the Court, and that too without the consent of

the appellant-father and the permission of the Court. The

revocation of the order of custody was a crucial material for the

purpose of determining the custody of the children. In fact,

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. All these aspects were highly relevant for passing an

order of custody of the minors.

26. Thirdly, the Court below also ignored the impact of the 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 on 01.12.2022 that she

will return to Qatar by 02.01.2023 for the continuation of the

minor’s education but travelled alone leaving the minors

behind in India, which had led to the disposal of the LPA

without consideration on merits.

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27. The aforesaid contempt order has attained finality and is

conclusive, and as such, the respondent-wife cannot resile

from her guilty conduct.

28. Lastly, in a criminal case regarding abuse and assault filed

against the appellant-husband the Qatar Court had given a

clean chit to him and there is no subsisting conviction for

assault, which clearly demonstrates that the misconduct as

alleged against him has not been proved so as to disentitle him

from the company of the children.

29. Apart from the above, not only the findings recorded by the

Family Court, Srinagar indicate that the minor children had

shown inclination to accompany the appellant-father to Qatar,

but the mediation report placed before this Court also contains

material observations which bear directly on the issue of

custody.

30. As per the mediation report, both children expressed an

inclination towards joining their father. Though they had

limited or no conscious memory of life in Qatar, where they

were born, they nonetheless conveyed a desire to explore and

reside there. When specifically asked as to who would look

14 after them in Qatar, the elder child stated that the presence of

his father would be sufficient and that someone would

inevitably be available to care for them. Both children appeared

comfortable with the prospect of being without their mother.

The younger child repeatedly expressed his wish to go with the

father and was visibly distressed during the interaction. It was

also recorded that both children speak only English, and found

difficulty in conversing with local children.

31. The High Court has completely ignored the aforesaid material

and crucial aspects while passing the impugned order. 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.

32. In view of the aforesaid facts and circumstances, we are of the

opinion that 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.

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33. 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.

34. The Civil Appeal is allowed with no order as to costs.

…………………………………...J. [PANKAJ MITHAL]

…………………………………...J. [S.V.N. BHATTI]

NEW DELHI;

FEBRUARY 04, 2026

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