Srinagar, August 21, KDC: Holding that a child’s custody with her biological father cannot be deemed illegal per se, the High Court of Jammu & Kashmir and Ladakh has flagged serious legal and jurisdictional shortcomings in a Family Court order that sent local police to search a father’s household and recover his five-year-old daughter following the mother’s remarriage.
A Bench of Justice Rahul Bharti issued notice in a supervisory petition under Article 227 of the Constitution of India, challenging the proceedings and the ex parte search warrant issued on June 29, 2026, by the Additional Judge, Family Court (4th Additional District Judge), Srinagar.
The dispute centres around five-year-old girl. Following marital discord, the estranged couple dissolved their marriage through a mutual written compromise deed on January 25, 2025. Under clause 5 of the agreement, both parties agreed that custody of the minor girl would remain with the mother only as long as she did not remarry, and upon her remarriage, full custody would revert to the father with visitation rights reserved for the mother.
Following the mother’s recent remarriage, the father took the child into his custody. The mother then approached the Family Court Srinagar under Section 100 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, alleging that the girl was taken forcibly. Without issuing prior notice to the father, the Family Court issued an immediate search warrant directing the Station House Officer (SHO), Police Station Chanapora, to recover the minor girl and produce her before the court, pursuant to which she was taken from the father and handed over to the mother.
Taking exception to the procedure adopted by the lower court, Justice Rahul Bharti observed that the Family Court acted with insensitivity by dispatching local police to raid a father’s residence.
“This Court has no hesitation to observe and register its concern that the court of Additional Judge, Family Court (4th Additional District Judge), Srinagar immediately resorting to directing the SHO Police Station, Chanapora to go for search of the minor daughter from the custody of none else than her own father which by no stretch of imagination could be illegal per se. Even if the court of Additional Judge, Family Court (4th Additional District Judge), Srinagar intended to have its concern for the welfare and welbeing of the minor daughter, the procurement of her person should have been by resorting to some other well meaning measure rather than sending the Police to the household of the petitioner and getting the minor girl (daughter) recovered,” the Court held.
The Bench further pointed out that if at all an execution was deemed necessary, it ought to have been assigned to the Women Cell rather than local police station personnel.
“The insensitivity of the court of Additional Judge, Family Court (4th Additional District Judge), Srinagar is exhibited from the fact that the SHO Police Station, Chanapora was given the authority to do the execution of the direction whereas instead it should have been SHO Women Cell Police Station be it Chanapora or Srinagar,” the Bench observed.
The High Court also raised a fundamental question regarding the lower court’s jurisdiction, noting that powers to issue search warrants under Section 100 BNSS are vested in District Magistrates, Sub-Divisional Magistrates, or Magistrates of the First Class, whereas Section 7(2) of the Family Courts Act, 1984, primarily extends criminal code jurisdiction to maintenance matters rather than search warrants for alleged wrongful confinement.
Directing the Registry to send for the entire original record of File No. 2404/2026 (Nafia Nazir vs. Shadab Hussain Mir), the High Court instructed the mother’s counsel to apprise the court regarding her current place of residence post-remarriage and scheduled the matter for continuation on August 21, 2026.
Advocate Zahid Hussain Dar appeared for the petitioner, while Advocate Waseem Shamas represented the respondent. (KDC)
