Jammu & Kashmir High Court – Srinagar Bench
Sana Aftab vs Mohtashem Billah Malik on 25 March, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
Serial No. 155
Supplementary Cause list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
FAO (MAT) No. 01/2025
Sana Aftab ...Petitioner(s)
Through: Mr A. H. Naik, Senior Advocate with
Mr Shabir Ahmad Najar, Advocate.
Vs.
Mohtashem Billah Malik ...Respondent(s)
Through: Mr Altaf Haqani, Senior Advocate with
Mr Shakir Haqani, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE.
ORDER
25.03.2025
1. The appellant and the respondent are divorcee wife and
husband now locked in a pending litigation with respect to
the custody of their two minor children (both sons) namely
Malik Karim Billah and Malik Rahim Billah.
2. The respective date of birth of said two children is 17 th of
October, 2017 and 4th of November, 2019.
3. The social and economic background of the appellant and
the respondent is that both are educated and professionals in
their own way as such were and are expected to act with a
sense of maturity in the matter of handling their own
children as parents even though they have failed to act with
prudence in the matter of their marital life.
4. The respondent, who is now Qatar based, came to petition
the court of Additional District Judge, Family Court,
Srinagar on its file No. 231/M on 9th of March, 2024 under
section 25 of the Guardians and Wards Act, 1890 for
claiming the guardianship and custody of his said two sons
from the appellant who was having them while in Srinagar
upon coming back from Qatar parting with her marital
company from the respondent.
5. The petition filed by the respondent came to be allowed by
the court of Additional District Judge, Family Court,
Srinagar by virtue of a judgment dated 2nd of January, 2025
whereby the respondent has been held to be entitled to
guardianship and custody of his two minor children subject
to the terms and conditions as set out by the court below in
paragraph No. 66 of its judgment.
6. The appellant, being aggrieved of the said judgment, came
forward with the institution of the present appeal under
section 19 of the Family Courts Act, 1984 read with section
47 of the Guardians and Wards Act, 1890.
7. In terms of an order dated 17th of February, 2025, this court
came to order stay of operation of the impugned judgment
dated 2nd of January, 2025 of the court of Additional District
Judge, Family Court, Srinagar.
8. The respondent has sought company of his said two sons
during the ongoing holy period of Ramzan so as to spend the
coming Eid in their company in the background of the fact
that from December, 2024 he has not met and enjoyed the
company of his two sons who otherwise are under the
custody and care of the appellant.
9. Since the welfare and well-being of the minor children is
always the first and foremost concern of any court at any
level in a litigation involving competing custody claims of
parents or for that matter marital feud, as such, this court
proposed to both sides to come forward with an amicable
arrangement in facilitating a short term stay of two sons with
the respondent to which both sides, acting with maturity,
have agreed for the same and, accordingly, this court is
coming forward with the following directions:
i. The two children (sons) namely Malik Karim Billah
and Malik Rahim Billah shall have seven days stay
with the respondent w.e.f. 28th of March, 2025 to 3rd of
April, 2025;
ii. The two children are to be handed over by the
appellant to the respondent for facilitating their stay
for the aforesaid period with the respondent;
iii. The respondent shall visit the residential house of the
appellant in Srinagar at 09:45 AM on 28th of March,
2025 for the purpose of taking the custody of two sons;
iv. The respondent shall make on his mobile phone video
recording of his arrival at the given time outside the
residential house of the appellant;
v. The appellant shall then deliver the custody of two
sons at 10:00 AM on 28th of March, 2025 to the waiting
respondent outside her residence;
vi. The appellant shall also on her mobile phone make
video recording of handing over of the custody of two
sons to the respondent;
vii. The appellant shall also handover the school bags of
two sons to the respondent so as to ensure that the sons
do not miss their intervening school days for lack of
school bags and books. The respondent to know from
the appellant as to the school timing of the two sons
and the mode of their school going and return;
viii. The respondent to ensure that while staying with themfor the aforesaid period, two sons do not miss their
school for any intervening school day/s;
ix. Upon getting the custody of the two sons from the
appellant, the respondent to ensure that two sons have
daily video call/ conference access to the appellant at
07:00 PM for the short custody period so that the sons
feel psychologically connected with the appellant;
x. The appellant and the respondent to ensure that they
do not switch off their respective mobile phones in use
so as to ensure video conferencing between the
appellant and two sons;
xi. The respondent is hereby being granted short-term
custody of two sons for the sake of their stay in his
parental household in Srinagar and, therefore, two sons
are not to be taken out of Srinagar city on any pretext
whatsoever by the respondent;
xii. On 3rd of April, 2025 at 06:00 PM, the respondent to
handover the custody of two sons back to the appellant
outside the residence of the appellant from where the
custody was taken by him from her;
xiii. The respondent to make video recording of handing
over of two sons to the appellant;
xiv. The respondent to hand over the passport of two
children on 27th of March, 2025 to his counsel Mr Altaf
Haqani, Senior Advocate for the sake of assurance of
the appellant that the respondent would not attempt to
take the two children outside India on account of
having got their short term custody by the intervention
of this court; and
xv. The appellant and the respondent to remain present
before this court on the next date of hearing i.e., 4th of
April, 2025.
10. List again on 4th of April, 2025.
(RAHUL BHARTI)
JUDGE
SRINAGAR:
25.03.2025
“TAHIR”
Tahir Manzoor Bhat
I attest to the accuracy and
authenticity of this
document
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