Constitution Bars Preference To Either Parent In Custody Disputes Merely Based On Their Gender: J&K&L High Court

Reinforcing the constitutional guarantee of equality and non-discrimination, the Jammu and Kashmir and Ladakh High Court has held that in matters of custody of a minor child, neither the father nor the mother can claim preference merely on the ground of gender.

Justice Javed Iqbal Wani, while allowing an appeal filed by a mother challenging the grant of custody to the father, observed that Articles 14 and 15 of the Constitution forbid gender based presumptions in custody matters, and that the welfare of the child alone must be the decisive consideration.

“Allowing any gender-based presumptions to determine the custody of a minor child would in essence amount to discrimination — a state of affairs forbidden by the Constitution,” the Court remarked.

"...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 added.

Background of the Case

The case arose from a custody dispute between appellant mother, represented by Mr. A. H. Naik, Senior Advocate with Mr. Shabir Ahmad Najar, and respondent father represented by Mr. Altaf Haqani, Senior Advocate with Mr. Asif Wani. The parties, who were married and residing in Qatar, obtained a divorce through the Family Court in Qatar in March 2022.

While the Qatari court granted physical custody of the two minor children to the mother, she soon shifted with them to India. This led the father to initiate custody proceedings under the Guardian and Wards Act, 1890 before the 4th Additional District Judge, Srinagar. On January 2, 2025, the trial court directed transfer of custody of the children to the father. Aggrieved, the mother approached the High Court in appeal.

The appellant-mother contended that the trial court had acted in undue haste, mechanically giving weight to her alleged past conduct and the father's superior financial status while ignoring the paramount consideration of the welfare of the minors. It was argued that she had been the primary caretaker since birth, and that her role in nurturing the children socially, emotionally, and educationally could not be substituted by financial affluence. She also relied on the fact that the custody granted to her by the competent Qatari court had been upheld even by the superior courts in Qatar.

On the other hand, the respondent-father, invoking the principle of Hizanat under Muslim law, submitted that the mother's right to custody was limited to a son up to two years of age and a daughter up to seven years. He urged that as the natural guardian, he was better placed to ensure the children's future, pointing also to his financial stability and the inclination of the children to live with him in Qatar.

Court's Observations

Justice Wani, after extensively reviewing constitutional principles, statutory provisions, and personal law, held that the welfare of the minors is the paramount consideration. The Court cited Supreme Court precedents including Tejaswini Gaud v. Shekhar Tewari (2019), Vasudha Sethi v. Kiran Bhaskar (2023), and Arathy Ramachandran v. Bijay Raj Menon (2025), reaffirming that parental rights are subordinate to the child's welfare.

The Court stressed that the right of every child to grow in an atmosphere of love, security, and dignity forms part of Article 21 of the Constitution, and that Article 39(f) obliges courts to ensure a child's healthy development. Further, India's commitments under the United Nations Convention on the Rights of the Child (UNCRC) fortify this principle, requiring courts to treat the best interest of the child as a primary consideration, the bench underscored.

Rejecting the trial court's reliance on the mother's alleged misconduct in leaving Qatar with the children and violating undertakings, the High Court noted that such lapses cannot outweigh the minors' welfare. It held that the mother's actions were influenced by the father's conviction by a Qatari court for assaulting her, and that her conduct demonstrated concern for the children's safety.

On the issue of financial capacity, Justice Wani observed, “Though it may be true that the respondent is financially better placed than the appellant, yet financial affluence cannot alone overreach the other critical factors such as emotional value, continuity of care, and cultural and social grounding of minors.”

The Court also disagreed with the trial court's heavy reliance on the children's temporary inclination to stay with the father, noting that young children's preferences are impressionable and cannot be decisive. Citing psychological research referred to by the Supreme Court, Justice Wani emphasized that forcing children to choose between parents risks emotional harm.

The plea of Hizanat raised by the father was also rejected. The Court clarified that under Islamic law, custody is not an entitlement of the parents but a right of the child, and that even personal law accords priority to the mother during the formative years unless she is disqualified on legally recognized grounds.

“No rigid or mechanical rule of age can override the paramount consideration of child's welfare,” the Court held, adding that gender equality under Articles 14 and 15 bars any presumption of paternal preference.

Concluding that shifting custody at this stage would unsettle the children emotionally, socially, and academically, Justice Wani set aside the trial court's order. The custody was directed to remain with the mother, while granting the father visitation rights.

Case Title: Sana Aftab Vs Mohtashem Billah Malik

Click Here To Read/Download Judgment