A long and emotional custody battle between two parents who once built their life in Qatar reached the Supreme Court On Tuesday 03 February, the top court set aside a Jammu & Kashmir High Court order that had handed custody of two young boys to their mother and sent the case back for a fresh look.
The dispute is between Mohtashem Billah Malik and Sana Aftab, both Indian citizens, over their sons aged eight and six who were born and raised in Qatar before being brought to India during a troubled phase of their parents’ marriage
Background of the Case
The couple married in Srinagar in 2015 and soon moved to Qatar, where the father worked as an electrical engineer. Their two sons were born there. After relations broke down, both sides went to a family court in Qatar. In March 2022, that court granted a judicial divorce. It gave daily custody of the children to the mother but kept guardianship with the father. He was also told to pay support and hand over all documents except the passports, which stayed with him.
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A few months later, the mother travelled to India with the children. The father alleged this was done without his consent and without court permission, and in the middle of the school year. He moved the Jammu & Kashmir High Court, saying the children were in illegal custody.
During those proceedings, the mother gave an undertaking that she would return to Qatar before the elder child’s school reopened in January 2023. The case was closed on that assurance. But she did not take the children back.
That failure had consequences. A Qatar court later cancelled the custody order in her favour and directed that custody be given to the father. Separately, a Srinagar court held her guilty of contempt for breaking her promise and imposed a token fine, also restoring the old appeal for hearing on merit.
The father then approached the Family Court in Srinagar under the Guardians and Wards Act. In January 2025, that court gave him custody. But in September 2025, the High Court reversed this and restored custody to the mother, saying the only real test was the “welfare of the children.”
That High Court order brought the father to the Supreme Court.
Court’s Observations
The bench led by Justice Pankaj Mithal and Justice S.V.N. Bhatti agreed that a child’s welfare is the top priority. But it made it clear that welfare cannot be seen in isolation.
“The welfare of the children is the main consideration,” the bench noted, but added that courts also have to look at “conduct of the parties, their living conditions, and the impact on the children’s education”.
The judges pointed out three major gaps in the High Court’s approach.
First, the High Court did not seriously weigh the mother’s act of taking the children out of Qatar without the father’s consent or court approval.
Second, it ignored the Qatar court’s 2023 order that had cancelled her custody because of that very conduct.
Third, it brushed aside the contempt finding against her for breaking her own promise to return the children to Qatar for schooling.
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The bench also referred to material showing that the children had earlier expressed a wish to go with their father, and that these factors, even if not decisive alone, could not simply be overlooked.
As one part of the ruling put it, these were “material and relevant factors” that should have been considered together before deciding who should keep the children.
Decision
In the end, the Supreme Court set aside the High Court’s September 2025 order. It sent the case back to the High Court to decide it again, this time by properly considering all these factors. The court asked that this be done as quickly as possible, preferably within four months.
The appeal was allowed, with no order on costs.
Case Title:- Mohtashem Billah Malik vs. Sana Aftab
