Custody Cannot Be Decided Solely on Wealth or Gender

The Jammu & Kashmir and Ladakh High Court ruled that custody of children cannot be shifted merely on the basis of a parent’s financial status, past contempt, or temporary inclinations of minors. The paramount factor must always be the welfare and stability of the children.

Brief Facts of the Case

• The appellant (mother) and respondent (father), both previously residing in Qatar, divorced in 2022. Custody of their two minor children was initially given to the mother by the Qatar Family Court.
• The mother later shifted to India with the children. The father filed multiple proceedings in India, alleging illegal custody.
• The 4th Additional District Judge, Srinagar (02.01.2025), awarded custody to the father, citing his stronger financial position and better “future prospects” for the children.
• The mother challenged this order before the High Court.

Legal Provisions Involved

• Guardians and Wards Act, 1890 – Governs custody and guardianship disputes.
• Article 21, Constitution of India – Right to life with dignity, including a child’s right to emotional security and parental affection.
• Articles 14 & 15, Constitution of India – Equality and non-discrimination, prohibiting gender-based presumptions in custody.
• Personal Law (Muslim Law on Hizanat) – Considered but not treated as determinative.
• International Law – UN Convention on the Rights of the Child (UNCRC).

Arguments

Appellant (Mother):

• Lower court acted hastily, ignoring her continuous care for the children since birth.
• Welfare of children cannot be measured only in terms of money.
• Qatar court had already entrusted custody to her; shifting custody again would emotionally disturb the minors.

Respondent (Father):

• Mother violated previous court orders and undertakings.
• As a well-settled professional in Qatar, he could provide better education and opportunities.
• Cited Islamic concept of Hizanat, arguing custody should move to the father after a certain age.

Court’s Observations

• Welfare of the children is paramount and cannot be overridden by financial affluence, past violations, or rigid personal law interpretations.
• Emotional stability, continuity of care, and cultural environment matter as much as material comfort.
• Courts must not treat custody as a reward or punishment for parental conduct.
• Gender-based presumptions in custody are unconstitutional.
• The mother’s care, support of maternal grandparents, and consistent involvement in the children’s lives were crucial.

Conclusion of the Judgment

• The High Court set aside the lower court’s order and restored custody to the mother.
• The father was granted structured visitation rights, including interim custody during visits to Srinagar, alternate Eid celebrations, video calls, and vacations, ensuring meaningful contact with both parents.

Comments from the author of this website

Reading this judgment, I am struck by a recurring pattern in how custody cases are handled in India. On one hand, courts rightly say that wealth alone cannot decide custody. On the other, fathers who show deep involvement, who fight long legal battles, and who travel across borders for their children, are still left with little more than visitation rights.

Let’s face it: a father’s love is constantly undervalued in our system. He is seen as a “provider,” not a nurturer. Even when courts acknowledge that fathers are doting, responsible, and eager to play a central role in their children’s lives, the system reduces them to weekend visitors, bound by video calls and tightly supervised meetings. That is not fatherhood. That is marginalization.

What bothers me most here is that the father clearly demonstrated commitment—attending hearings, bearing expenses, showing up consistently—yet his role was diluted to “alternate festivals” and “five-day interim custody.” Imagine the emotional toll: to love your children deeply, but to have the law tell you that your role is temporary, secondary, almost ornamental.

And this is not just about one father. This is about thousands of men in India who are pushed into the same corner every day. They are told that the mother’s presence is indispensable, but the father’s presence is optional. They are told that money matters when deciding custody, but affection and involvement matter only when convenient.

The saddest part? Children lose the most. A child deserves the love, care, and active involvement of both parents. Yet our system still frames custody as a contest where one parent “wins” and the other “loses.” Why can’t we move towards co-parenting? Why can’t we normalize shared custody, where children grow up with the balanced presence of both parents, instead of being forced to choose?

This case, in my view, reflects both progress and failure. Progress—because the Court rejected the idea that financial power alone can decide custody. Failure—because once again, the father’s bond was acknowledged but not empowered.

Final Thoughts

Until our family laws move beyond the outdated “custody vs. visitation” model and adopt true shared parenting, men will continue to walk out of courts as half-parents. And children will continue to grow up deprived of one parent’s full involvement, not because it was best for them, but because the law could not see beyond traditional roles.

Practical Advice for Fathers in Custody Battles

1. Document Everything: Keep records of your involvement—school reports, medical appointments, daily routines—showing you are an active parent, not just a financial supporter.
2. Push for Shared Parenting: Don’t settle for “visitation rights” as the default. Argue for joint custody and co-parenting, which courts are slowly beginning to recognize.
3. Show Consistency: Courts value stability. Regular visits, calls, and visible commitment strengthen your case.
4. Stay Calm in Court: Emotional outbursts or frustration can work against you. Present yourself as balanced, reliable, and child-focused.
5. Think Long-Term: Even if custody is not granted today, consistent involvement keeps your bond alive and improves chances in future modifications.
6. Build Support Networks: Join father’s rights groups and communities where you can share experiences, find guidance, and not feel isolated in the battle.

Read Complete Judgement Here