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This article has been researched and written by Advocate Aarun Chanda, who practices divorce law in Mumbai and Pune. It is intended solely for academic purposes and should not be construed as legal advice. The views expressed are personal. Readers are encouraged to consult a qualified lawyer or advocate specializing in divorce cases for professional legal guidance.
A Family Court cannot casually turn a custody disagreement into a police recovery operation
There are certain instructions that arrive in a lawyer’s chamber which make you put down your cup of tea before you have finished it.
A few years ago, a client walked into my chamber and announced with considerable urgency, “Sir, the police are coming to recover my child.”
I asked him, perhaps rather optimistically, “Is the child missing?”
“No, Sir.”
“Is the child in danger?”
“No, Sir.”
“Then what exactly is the police going to recover?”
“My daughter. She is with me.”
That, unfortunately, is the peculiar arithmetic of matrimonial litigation. The child is sitting safely in the father’s house, the mother is sitting in the courtroom, the father is sitting nervously in my chamber, and somewhere in between all three, the law is expected to determine who should sit with the child.
Anyone who has practised before the Family Courts knows that custody disputes are rarely merely about custody. They are about hurt, mistrust, failed marriages, competing claims of parenthood and, sometimes, the rather unfortunate belief that whoever manages to obtain the first order has won the case.
But a recent decision of the High Court of Jammu & Kashmir and Ladakh has reminded Family Courts of something fundamental: a custody dispute does not automatically become a criminal investigation, and the presence of a child with a parent does not, by itself, make that custody illegal.
The judgment, delivered by Justice Rahul Bharti in proceedings instituted by Shadab Hussain Mir under Article 227 of the Constitution, raises important questions about judicial power, police intervention, search warrants and, above all, the manner in which the law ought to deal with children caught in matrimonial disputes.
A five-year-old child, a written settlement and an unexpected police operation
The facts are important because they demonstrate how easily a custody dispute can travel from the language of family law into the language of criminal process.
The parties had dissolved their marriage pursuant to a settlement agreement dated 25 January 2025. Under that arrangement, custody of their minor daughter was to remain with the mother, but there was a significant condition: if the mother remarried, custody was to revert to the father.
The mother subsequently remarried.
The father then took the five-year-old child into his care, relying upon the very condition which the parties had incorporated into their settlement.
The mother approached the Fourth Additional District Judge, Family Court, Srinagar.
What happened thereafter is what brought the matter before the High Court.
On 29 June 2026, the Family Court directed the Station House Officer of Chanapora Police Station to execute a search warrant, recover the child and return her to the mother. In other words, a dispute arising out of a matrimonial settlement had now acquired the appearance of a police recovery operation.
The father approached the High Court under Article 227.
And this is where the matter became considerably more interesting.
A father is not a criminal simply because he has custody of his child
Justice Rahul Bharti questioned the premise underlying the Family Court’s approach.
The High Court observed, in substance, that the father’s custody of his own child could not, by any stretch of imagination, be regarded as illegal per se.
That proposition may sound almost self-evident.
Yet, as practitioners know, the self-evident sometimes needs to be stated in a judgment because litigation has a remarkable ability to make ordinary things complicated.
A father having physical custody of his five-year-old daughter is not, merely for that reason, a person unlawfully confining a child.
The question must necessarily be:
Why is the custody unlawful?
And before that question can be answered, the court must examine the surrounding legal arrangement.
Here, there was a written compromise between the parents. More importantly, the father was relying upon a specific contingency contained in that compromise. The mother had remarried, and the father claimed that the agreed consequence of that event was the transfer of custody to him.
The High Court therefore found that his custody could not, at the threshold, be branded as wrongful or illegal.
This distinction is fundamental.
A court may ultimately decide that the father is not entitled to permanent custody.
It may conclude, after examining the welfare of the child, that the mother should have custody.
It may even modify or disregard an earlier arrangement if the law permits and the welfare of the child demands it.
But that is quite different from saying that the father is unlawfully detaining the child and therefore that the police should immediately be sent to recover her.
Custody is not the same thing as detention
This is where constitutional and family-law principles intersect.
A writ of habeas corpus has historically been used to secure release from unlawful restraint. In appropriate cases, that jurisdiction can extend to children.
The Supreme Court has recognised that habeas corpus jurisdiction can be invoked in child-custody matters, particularly where the custody complained of is unlawful and the extraordinary jurisdiction of the High Court becomes necessary.
But there is an important qualification.
A custody dispute between parents is not automatically transformed into an allegation of illegal detention merely because one parent is dissatisfied with where the child presently happens to be.
The distinction was also explained by the Jammu & Kashmir High Court in Ayat Nabi v. Union Territory of J&K, where the Court recognised that habeas corpus can operate in child-custody matters where detention by a parent or other person is unlawful, while also emphasising that ordinary custody disputes ordinarily belong within the statutory framework governing guardianship and custody.
The law, therefore, does not permit us to confuse two very different situations:
First: a child is being unlawfully detained by someone having no legal authority or entitlement to custody.
Second:two parents are litigating over which of them should exercise custody.
The first may justify extraordinary intervention.
The second ordinarily requires adjudication under the applicable guardianship and custody laws, with the welfare of the child remaining the central consideration.
The police cannot become the Family Court’s enforcement arm by default
This, to my mind, is the most significant aspect of the judgment.
Family Courts undoubtedly possess wide powers to deal with disputes concerning children. But wide jurisdiction does not mean unlimited jurisdiction.
Section 7 of the Family Courts Act, 1984 defines the jurisdiction of Family Courts in matters concerning, among other things, guardianship and custody of children.
It does not follow, however, that every power available somewhere in the criminal procedural statute automatically becomes available to a Family Court merely because the dispute happens to involve a child.
The High Court specifically questioned whether the Family Court could invoke Section 100 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for issuing a search warrant in the circumstances of the case.
The Court noted that the statutory power under Section 100 BNSS to issue such search warrants is vested in specified Magistrates—such as the District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class—and questioned the legal basis upon which a Family Court had assumed such authority.
That question is not a technicality.
Jurisdiction is the foundation upon which judicial power rests.
A court cannot acquire a power merely because exercising it may appear convenient.
The Latin maxim quando aliquid conceditur, conceditur et id sine quo res esse non potest—when something is granted, everything necessary to make it effective is also granted—cannot be converted into a licence to assume powers that the statute has deliberately placed elsewhere.
The limits of jurisdiction are not obstacles to justice.
They are part of justice.
Ex parte orders deserve particular caution when a child is involved
The High Court was also critical of the manner in which the search warrant had been issued.
The father had not been heard before the coercive process was set in motion.
That is troubling in any matter involving a serious interference with a person’s liberty or property.
It becomes even more troubling when the subject is a five-year-old child.
An ex parte order is sometimes indispensable. Courts routinely grant urgent interim relief when delay itself may defeat justice.
But urgency should never become a substitute for judicial scrutiny.
Before directing police officers to enter the home of a parent and remove a child, a court should ordinarily ask some fairly elementary questions:
What is the existing custody arrangement?
Is there an operative judicial order?
Was there a settlement between the parents?
What exactly does that settlement provide?
Has the alleged breach been established?
Is the child actually in unlawful custody?
Is there any immediate threat to the child’s safety?
Has the parent in possession of the child been heard?
And, most importantly, is police recovery really necessary?
The High Court’s criticism was directed precisely at the failure to examine these questions with sufficient care. Justice Bharti regarded the issuance of the ex parte search warrant without hearing the father and without examining the factual position comprehensively as a serious shortcoming.
In matrimonial litigation, I have often found that the first version of a story is rarely the last version.
That is why a judge must be especially careful before allowing one party’s urgency to become the State’s coercive machinery.
There is also something called judicial sensitivity
The High Court went further and described the deployment of police to the father’s home as reflecting judicial insensitivity.
That observation deserves attention.
A police officer arriving at a parent’s home to “recover” a five-year-old child is not an ordinary event in the life of a child.
Imagine the scene.
The child is playing.
There is a knock at the door.
Uniformed police officers enter.
Adults begin arguing.
Someone says the court has ordered recovery.
Someone else produces a settlement agreement.
The child, who understands very little of the legal dispute, understands one thing perfectly well:
Something terrible is happening.
The law must never lose sight of that human dimension.
A Family Court exists precisely because matrimonial and family disputes require a degree of sensitivity different from ordinary adversarial litigation.
The High Court observed that, if recovery had genuinely been necessary, more appropriate and well-meaning measures could have been considered rather than sending the local police to the father’s home in the manner contemplated by the Family Court.
That is not merely a comment on procedure.
It is a reminder about the philosophy of family adjudication.
The welfare of the child remains the governing principle
None of this means that a father automatically acquires a superior right to custody.
Nor does it mean that a mother’s custody is beyond judicial scrutiny.
The governing consideration in custody litigation remains the welfare of the child.
The Supreme Court has repeatedly emphasised this principle.
In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the Supreme Court made it clear that custody disputes cannot be resolved merely by determining which parent has a superior legal right. The welfare and interest of the child must remain the paramount consideration.
Similarly, in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, the Supreme Court emphasised that custody proceedings require the court to examine the child’s welfare in its fullest sense, including emotional, educational, moral and physical well-being.
And in Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, the Supreme Court reiterated that the welfare of the child is the paramount consideration in custody matters, while also recognising the importance of meaningful contact between a child and both parents.
The J&K High Court’s judgment does not dilute these principles.
It reinforces them.
Because if welfare is the governing principle, then the court must first ensure that the process adopted for determining welfare does not itself become a source of unnecessary trauma.
A custody order is not a criminal warrant in disguise
There is another practical lesson here for practitioners.
A parent who believes that the other parent has violated a custody arrangement has remedies.
The answer, however, is not always to ask the police to recover the child.
The court may consider:
i. Enforcement of an existing custody order;
ii. Modification of custody;
iii. Interim custody;
iv. Visitation;
v. Contempt or appropriate enforcement proceedings, where legally maintainable;
vi. Proceedings under the guardians and wards act;
vii. Appropriate constitutional remedies in genuinely exceptional circumstances.
The remedy must correspond to the legal wrong.
That principle sounds elementary, but family litigation frequently tests it.
A father who refuses to return a child contrary to a binding court order may expose himself to consequences for disobedience.
That is entirely different from a father exercising custody pursuant to a written arrangement which, on its face, supports his position.
In the former case, coercive enforcement may be justified.
In the latter, the court must first adjudicate the competing claims.
The difference between the two is not semantic.
It is the difference between enforcing law and assuming a conclusion.
An important contrast: when the parent himself violates the custody order
Interestingly, another decision of the Jammu & Kashmir High Court earlier in 2026 illustrates the opposite side of the principle.
In Ishfaq Ahmad Ganai v. Tawheeda Begum, decided on 29 April 2026, the father had been granted overnight visitation under an order of the court. He took custody of the child during the permitted visitation period but failed to return the child at the stipulated time.
When the mother approached the court, coercive steps were taken, including directions to the police.
The High Court declined to protect the father, holding that he had a legal obligation to comply with the visitation order and could not take advantage of his own wrong. The Court directed him to hand over the child and observed that if he sought a different custody arrangement, he had to pursue the appropriate legal remedy rather than taking custody into his own hands.
This decision is important because it prevents the recent judgment concerning Shadab Hussain Mir from being misunderstood.
The J&K High Court has not said that a parent may ignore a custody order simply because he or she believes that the order is wrong.
Nor has it said that fathers are entitled to take custody whenever they consider themselves better placed to care for the child.
The rule is much simpler:
A parent must obey the law and the orders of the court. If the parent wants the order changed, the parent must return to court.
That is precisely what the rule of law requires.
The dangerous temptation of “self-help”
Custody litigation becomes particularly dangerous when either parent begins practising what lawyers politely call “self-help”.
The father says, “The child is mine, so I will keep her.”
The mother says, “The child should be with me, so I will take her back.”
Then somebody calls the police.
The police arrive.
The lawyers arrive.
The grandparents arrive.
And the child, who is the supposed beneficiary of all this legal protection, is left wondering why the adults have turned her home into a courtroom.
Courts exist to prevent precisely this.
Neither parent should be permitted to become the final judge of his or her own entitlement.
The father’s claim in the present case was not accepted simply because he was the father. It received judicial consideration because there was a written settlement containing a specific custody arrangement and because the factual circumstances appeared to bring his custody within that arrangement.
That distinction must be maintained.
Family Courts require both authority and restraint
The Family Courts Act was enacted with a clear purpose: to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs.
The Family Court is therefore not intended to function merely as another civil court with a different signboard.
Its jurisdiction is broad, but its approach must be humane.
In custody litigation, the judge is dealing not merely with competing legal rights but with a developing human being.
The court’s power must consequently be exercised with two things constantly in view:
authority and restraint.
Authority is necessary because children cannot become bargaining chips.
Restraint is necessary because every coercive order affects the emotional world of the child.
A police officer may be able to recover a person.
But a police officer cannot recover a child’s sense of security once it has been damaged.
That is why judicial sensitivity is not an ornamental virtue in family litigation. It is part of substantive justice.
What the judgment teaches practitioners
For those of us who appear regularly in Family Courts, the decision offers several practical lessons.
First, always examine the existing custody arrangement before seeking coercive relief.
Second, a written settlement cannot be ignored merely because one party later finds its consequences inconvenient.
Third, custody with a parent is not automatically illegal custody.
Fourth, the extraordinary powers of constitutional courts and the coercive machinery of criminal procedure must not be invoked casually in ordinary custody disputes.
Fifth, a parent seeking a change in custody must ordinarily pursue the appropriate legal remedy rather than resorting to self-help.
And finally, the welfare of the child must remain the centre of the litigation, not the emotional victory of one parent over the other.
The larger constitutional lesson
What appears, at first glance, to be a dispute about a five-year-old girl and her parents is actually a dispute about something much larger.
It is about the limits of judicial power.
A court may have jurisdiction over the subject matter, yet still have to ask whether a particular procedural power exists.
A judge may be deeply concerned about a child’s welfare, yet still be required to act within the boundaries prescribed by law.
A parent may have a legitimate grievance, yet still be required to seek the legally recognised remedy.
And the police, despite their enormous coercive power, cannot become an instrument for resolving every private dispute merely because one party invokes the language of urgency.
That is what the rule of law means in practice.
It means that even when the cause appears sympathetic, the procedure cannot be invented.
It means that even when the child needs protection, the court must protect the child through lawful means.
It means that judicial power is strongest when it knows its own boundaries.
The child should never become the evidence of victory
I have spent enough years in matrimonial courts to know that parents sometimes enter custody proceedings believing that the child is the prize to be won.
It is not.
A child is not an asset.
A child is not evidence of parental superiority.
A child is not an instrument of revenge against an ex-spouse.
And certainly, a child should never become the subject of a police operation unless the law genuinely requires such intervention.
The Jammu & Kashmir High Court’s decision in the matter concerning Shadab Hussain Mir is therefore important not because it gives fathers a victory over mothers, or mothers a warning against fathers.
Its importance lies elsewhere.
It reminds every participant in family litigation—the litigant, the lawyer, the police officer and, perhaps most importantly, the judge—that the power to act must always be accompanied by the duty to act lawfully and sensitively.
In the end, family law is not really about deciding which parent deserves to win.
It is about ensuring that, when the marriage has failed, the child does not become another casualty of that failure.
And sometimes the most important thing a High Court can do is not to decide who should have the child, but to remind the courts below how carefully the law must walk when a child’s hand is in the middle of the dispute.

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