Srinagar, August 22: The Jammu and Kashmir High Court has reprimanded a family court in Srinagar for sending police to retrieve a five-year-old girl from her father.
Justice Rahul Bharti, in his ruling, noted that the family court exhibited legal flaws and insensitivity in issuing a search warrant and directing the police to bring the child back.
This case is linked to a petition filed by Shadab Hussain Mir under Article 227 of the Constitution. Justice Bharti stated that having custody of the child solely by the father is not inherently illegal.
The petitioner and his ex-wife divorced on January 25, 2025, under mutual agreement. According to this agreement, custody of their minor daughter was granted to the mother, with a stipulation that if she remarried, custody would revert to the father.
After the mother remarried, the father retained custody of the child. Subsequently, the mother filed a petition before the Fourth Additional District and Sessions Judge (Family Court) in Srinagar. On June 29, 2026, the family court ordered the Station House Officer of Chanapora police station to execute the search warrant, recover the child, and hand her over to the mother.
The High Court asserted that the father was acting as a responsible guardian according to the agreement made between both parties. The custody arrangement post the mother’s remarriage could not be deemed incorrect or illegal at first glance.
Justice Bharti criticized the lower court for issuing a unilateral search warrant without hearing the father’s side or thoroughly investigating the facts. He remarked that sending police to the father’s home to retrieve the child demonstrated judicial insensitivity.
He also indicated that if retrieving the child was necessary, the local police station should have employed more sensitive and appropriate measures, such as involving a women’s police cell.
The bench raised questions about whether the family court has the authority to exercise powers under Section 100 of the Indian Code of Civil Procedure, 1984, as per Section 7 of the Family Court Act.
Justice Bharti clarified that the authority to issue a search warrant under Section 100 lies with the District Magistrate, Sub-Divisional Magistrate, or First-Class Magistrate, not the family court.
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