Mother has primary right to custody under Muslim Personal Law: High Court

Srinagar, Sep 12: The High Court of Jammu and Kashmir and Ladakh has held that under Muslim Personal Law, a mother has the first claim to the custody of her minor children, and this right cannot be taken away unless she is disqualified on recognised legal grounds. The Court emphasised that the welfare and stability of the children must guide all custody decisions.
The ruling was delivered by Justice Javed Iqbal Wani while allowing an appeal against an order of the 4th Additional District Judge Srinagar, which had directed that custody of two minors be handed over to their father.
The case arose after a marital dispute between the parties, which ended in divorce. The mother had earlier been granted custody of the children by a court in Qatar, while the father was given visitation rights. After moving to Kashmir with her children in 2022, the mother faced fresh custody proceedings initiated by the father, who sought to take the children back abroad.
The Court made a clear distinction between guardianship and custody, observing that while a father is recognised as the natural guardian, custody is concerned with day-to-day care, affection and upbringing. It described custody as a right of the child rather than a privilege of either parent, and noted that Islamic jurisprudence accords priority to the mother during a child’s formative years.
On examining the facts, Justice Wani observed that the children had already settled with their mother in Kashmir, and removing them from that environment would not serve their welfare. The Court therefore set aside the order granting custody to the father.
At the same time, the Bench allowed the father interim custody during his visits to Srinagar, up to five days at a time and on special occasions like Eid, provided it does not disrupt the children’s education or comfort.
The appeal, titled Sana Aftab v/s Mohtashem Billah Malik, was disposed of with liberty for either party to approach the competent court if circumstances change in the future.