The High Court of Jammu & Kashmir and Ladakh recently observed that in child custody cases, the father's financial superiority over the child's mother is not a ground to render the mother unfit for the custody of the child.

Justice Javed Iqbal Wani observed that a father’s financial affluence alone cannot outweigh other critical factors such as emotional value and continuity of care for the children.

“The mother's comparatively modest means …  cannot be said to be rendering her unfit as a custodian, as in law, the term ‘welfare’ appearing under the (Guardian and Wards) Act 1890 has been interpreted by the courts consistently in its widest sense i.e. the consideration of the court would not only be extended to physical well-being of a minor, but would also include moral and physical welfare," the Court added.

Justice Wani also noted that the mother's crucial role in the upbringing of young children has been judicially recognised.

"Even the courts in India have consistently held that the care and affection of mother during the tender years of minors is of paramount importance and mothers role in upbringing them is indispensable unless the conduct of the mother is shown to be directly harmful to the welfare of the children," the Court held.

It made the observation while quashing a Srinagar court's decision to transfer the custody of two minor children from their mother to their father.

The trial court reasoned that the mother had earlier given an undertaking to allow the children to stay with their father abroad, but later failed to comply.

Treating the breach of undertaking as significant, the trial Court ordered that the children be handed over to the father, citing his financial capacity to provide a better standard of living for the children.

The mother challenged this order before the High Court.

The High Court allowed her appeal, concluding that custody cannot be shifted merely on account of the financial superiority of one parent or as a punitive measure for a breach of past undertakings.

The Court noted that in this case, there appeared to be some context to why the mother had left Qatar with her children and later did not take the children back to Qatar, despite an undertaking to do so before the High Court.

In this regard, it was noted that a Qatar court had earlier convicted her estranged husband for assaulting her. The High Court, therefore, reasoned that the mother may have been trying to protect her children when she left with them from Qatar without informing the children's father.

The Court went on to note that even if the mother was not as financially well off as the father, she had her own business and could adjust her work schedule to take care of the children.

"(She is) moreover residing with her parents thereby ensuring that the minors will have an additional care, love and supervision of their maternal grandparents," the Court added.

On the other hand, the Court noted that the father's work commitments could mean that he may have less time to personally attend to the children.

In this regard, Justice Wani referred to his personal interaction with the elder of the two children embroiled in the custody battle.

"Upon being asked that in the event they travel to Qatar without the appellant (mother) ... who would look after them there at Qatar, he (older child aged 7 years) in response candidly answered 'probably a maid'. His hesitation and visible discomfort at this response revealed that even without explicit words, a clear preference to the care by the appellant herein reflecting instinctive understanding of his own needs," the Court noted.

Further, it questioned the trial court's view that the children had shown a preference to stay with the father. The High Court pointed out that the two children were very young, aged 5 and 7 years old, and were unlikely to have a full awareness of the situation they were in.

The Court also rejected the father's argument that beyond a certain age, mothers cannot retain custody of sons and that the father would be the natural guardian.

The father had relied on the Hizanat (Islamic principles on child custody) to argue that a mother's right of custody over a minor extends only up to the age of 2 years in the case of a son.

However, the Court was not convinced.

"In Muslim Personal Law first and foremost custody of the minor belongs to the mother and she cannot be deprived of that right so long as she is not found guilty of misconduct or disqualified on legally recognized grounds and said right of mother of custody continues unless such disqualification is established," it said.

It added that the Constitution of India would also not favour gender discrimination in child custody matters.

"Gender equality forms the cornerstone of our constitutional order and it cannot by any stretch of imagination be presumed that the father, by virtue of his dominant personality status, has a preferential right over the mother in the guardianship or custody of a minor," the Court said.

The Court concluded that in the present case, the minor children had been continuously living with their mother in Kashmir since 2022, attending school and enjoying stability. Removing them from this environment would disturb their settled life and cause emotional upheaval, it noted.

Therefore, it allowed the mother to retain child custody while granting the father visitation rights.

Senior Advocate AH Naik with advocate Shabir Ahmad Najar appeared for the mother.

Senior Advocate Altaf Hussain with advocate Asif Wani appeared for the father.

[Read Judgment]