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Family LawSupreme Court of India

Mohtashem Billah Malik v. Sana Aftab

Civil Appeal · 2026 INSC 118Decided 4 Feb 2026
C.A. No.-000771-000771 - 2026
Justice Pankaj Mithal · Justice S.V.N. Bhatti

Background

A husband and wife, both Indian citizens who married in Srinagar and later lived in Qatar where their two sons were born, divorced there in 2022; the Qatar Family Court gave custody to the mother but guardianship to the father. The mother later brought the children to India mid-academic-session without the father's consent and allegedly without their original passports, breaking an undertaking to a Jammu & Kashmir High Court bench that she would return to Qatar for the elder child's schooling. The Qatar court subsequently revoked her custody for this conduct, an Indian contempt court found her guilty of violating her undertaking, and while the Family Court at Srinagar then granted custody to the father, the High Court reversed that and restored custody to the mother, leading to this appeal.

Decision Breakdown

The Supreme Court held that while a child's welfare is always the paramount consideration in custody disputes, the High Court erred in treating the parents' conduct, the mother's undertaking-breach, and the Qatar court's custody revocation as largely irrelevant. It found the High Court had ignored several material facts: the mother's removal of the children without consent or original passports, the finality of the contempt finding against her, the Qatar court's revocation of her custody, and a mediation report before the Supreme Court in which both children expressed a clear wish to live with their father. Because these factors were wrongly discounted, the Court set aside the High Court's judgment and remanded the matter for fresh consideration on merits within four months.

Lesson Learnt

In custody disputes, a parent's conduct (such as unilaterally relocating children across borders without consent, violating a court undertaking, or losing custody rights abroad for misconduct) is a legally relevant factor that courts must weigh alongside (not ignore in favour of) the generic "welfare of the child" standard, and children's own expressed wishes, gathered through proper mediation, must also be given real weight.

Mohtashem Billah Malik v. Sana Aftab – Legal Case Shots | LegalAware