Welfare of Child Doesn’t Mean Blinders to Parental Misconduct or Foreign Custody Orders: Supreme Court

"Paramount interest of child includes consideration of education, conduct of parents, and foreign court findings" — Supreme Court sets aside High Court’s restoration of custody to mother who defied undertakings and removed children from Qatar mid-session.

In a latest Judgement , the Supreme Court of India addressing the nuanced legal terrain surrounding custody of minor children removed from a foreign jurisdiction in violation of court undertakings. The apex court set aside the judgment dated 08.09.2025 passed by the High Court of Jammu & Kashmir and Ladakh, which had restored custody to the respondent-mother despite her breach of undertakings and findings of contempt, and remanded the matter for fresh adjudication.

The Court underscored that while the “welfare of the child is the paramount consideration in custody disputes”, it cannot be assessed in isolation from relevant material such as the parental conduct, educational disruption, preference of the child, foreign court orders, and even subsisting findings of contempt. The High Court, the Supreme Court held, erred gravely in “ignoring these material aspects under the pretext of the ‘paramount welfare’ principle”.

"Welfare of Children Cannot Be Examined in a Vacuum, Ignoring Serious Misconduct of a Parent": SC Blasts High Court for Overlooking Qatar Orders and Contempt Finding

The Supreme Court took particular exception to the High Court’s decision to restore custody to the respondent-wife, who had removed the two minor children—Malik Karim Billah (born 2017) and Malik Rahim Billah (born 2019)—from Qatar to India without consent of the appellant-husband, who was their court-appointed guardian, and without the permission of Qatari courts.

The children, born and residing in Qatar, were studying in established British curriculum schools when they were abruptly shifted mid-session. The respondent-mother travelled with them to Srinagar in August 2022, allegedly using new or duplicate passports while the original ones remained with the father as per Qatari court orders.

The High Court, while overturning the Family Court's order granting custody to the father, reasoned that the sole consideration should be the "welfare of the child" and that aspects such as parental income, conduct, or even the child’s preferences should not weigh heavily. The Supreme Court found this approach to be legally unsustainable.

“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,” the bench of Justices Pankaj Mithal and S.V.N. Bhatti observed in Para 22 of the judgment.

The apex court highlighted that conduct of the parties, their standard of living, comfort and education of the child, and compliance with foreign custody orders are not extraneous to the welfare of the child, but rather form an integral part of it.

Mutual Divorce in Qatar, Followed by Breach of Undertakings in India

The appellant-father, a qualified electrical engineer working in Qatar since 2013, and the respondent-mother, both Indian citizens, had married in Srinagar in 2015 and began living in Qatar where both children were born. Following marital discord, mutual divorce proceedings were initiated in Qatar and culminated in a decree of judicial divorce in March 2022. Custody was granted to the mother, but guardianship—including the custody of original passports—remained with the father.

In violation of this, the mother returned to India with the children in August 2022 without informing the father or seeking leave of the Qatar court. Following litigation in India, she gave an undertaking before the High Court of J&K and Ladakh on 01.12.2022, promising to return to Qatar with the children before January 2, 2023, to resume the elder child’s schooling. She visited Qatar alone but left the children behind.

This led the Qatari court to revoke her custody on 31.10.2023 and order transfer of custody to the father. Simultaneously, the High Court found her guilty of contempt of court on 06.08.2024 for breach of undertaking, though imposed only a token fine of Rs. 100.

Disregard for Education and Custodial Continuity Cannot Be Glossed Over

The Supreme Court criticised the High Court’s refusal to factor in the educational disruption caused by the abrupt removal of the children. The evidence showed that although the mother claimed admission in schools in Srinagar, in reality the children were not regularly enrolled until March 2024—almost two years after being taken out of school in Qatar.

"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," the Court observed, rejecting the respondent’s claims of educational continuity.

Further, the children’s preference to stay with the father was noted not only in the Family Court proceedings but also in the mediation report before the Supreme Court. The elder child stated that his father’s presence would suffice for care in Qatar. The younger child was “visibly distressed” in India and expressed repeated desire to go with the father.

“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,” the Court held in Para 31.

High Court Ignored Finality of Qatar Custody Revocation and Contempt Finding

The Supreme Court was also categorical that the High Court had entirely failed to appreciate that the custody order in favour of the mother stood revoked by the competent Qatar Court due to her misconduct, and that the father had been declared the legal custodian.

Further, the finding of contempt recorded by the High Court itself had attained finality and could not be brushed aside. The mother’s failure to comply with her solemn undertaking had not only legal consequences but also significant bearing on her fitness as custodian.

Holding that the High Court's decision was vitiated by a disregard of material legal and factual considerations, the Supreme Court allowed the appeal and set aside the impugned judgment. The matter has been remanded to the High Court for fresh consideration on merits, with directions to complete the process expeditiously.

“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,” the Court reiterated.

The decision reinforces that parental misconduct, educational disruption, contempt of court, and foreign custody orders are not collateral but central to custody determinations. Courts must take a holistic view, not a narrow one, when adjudicating the delicate issue of minor custody.

Date of Decision: February 4, 2026