1 week ago
J&K High Court Questions Police Search for Five-Year-Old
A mother and father had agreed that the mother would care for their daughter unless she remarried.
After the mother remarried, the father took care of the five-year-old girl.
The mother asked a Family Court to help get the child back.
The court told police to find the girl and return her.
The High Court said the father’s custody could not automatically be called illegal because of the written agreement.
It also said the Family Court should have heard the father before issuing the order.
The High Court questioned whether that Family Court had the legal power to issue the search warrant.
It said using police at the father’s home was insensitive and suggested more careful measures should have been considered.
The J&K High Court criticised a Srinagar Family Court for sending police to recover a five-year-old girl from her father.
The parents’ January 25, 2025 settlement gave custody to the mother, with custody reverting to the father if she remarried.
After the mother remarried, the father took care of the child under the agreement.
On June 29, 2026, the Family Court ordered Chanapora police to execute a search warrant and return the girl to her mother.
Justice Rahul Bharti questioned the warrant’s legality, the lack of notice to the father, and the Family Court’s authority to issue it.
- Who
- The High Court of Jammu and Kashmir and Ladakh, Justice Rahul Bharti, the father Shadab Hussain Mir, the mother, and the Srinagar Family Court are involved.
- What
- The High Court criticised a Family Court order directing police to search for and recover a five-year-old girl from her father.
- Where
- The proceedings involved the 4th Additional District Judge (Family Court), Srinagar, and Chanapora police station.
- When
- The parents signed the custody agreement on January 25, 2025; the Family Court issued its order on June 29, 2026; the High Court’s observations were reported on August 22.
- Why
- The mother sought the child’s return after remarrying, while the father relied on an agreement providing that custody would revert to him if she remarried.
High Court’s concerns
Mother’s recovery request and Family Court action
Whether the father’s custody was unlawful
High Court’s concerns
The High Court said the father was acting under a mutually agreed custody arrangement and that his custody could not prima facie be branded wrongful confinement or illegal custody.
Mother’s recovery request and Family Court action
The mother approached the Family Court for the child’s return after she remarried; the Family Court ordered police to recover the girl and return her to her.
Use of a police search warrant
High Court’s concerns
The High Court called the ex-parte warrant legally questionable and criticised sending local police to the father’s home without first hearing his response.
Mother’s recovery request and Family Court action
The Family Court directed the SHO of Chanapora police station to execute the warrant and recover the child.
Authority to issue the warrant
High Court’s concerns
The High Court questioned whether a Family Court could exercise Section 100 BNSS powers, noting that the provision assigns search-warrant powers to specified magistrates.
Mother’s recovery request and Family Court action
The Family Court issued the search warrant, although the High Court questioned whether it had statutory authority to do so.
Key facts
- Petitioner
- Shadab Hussain Mir, the child’s father
- Child’s age
- Five years
- Custody agreement
- A written compromise dated January 25, 2025
- Custody condition
- Custody was to revert to the father if the mother remarried
- Family Court order
- On June 29, 2026, it directed the Chanapora police station to execute a search warrant
- High Court judge
- Justice Rahul Bharti
- Legal provisions questioned
- Section 7 of the Family Courts Act, 1984, and Section 100 of the Bharatiya Nagarik Suraksha Sanhita, 2023
Sources
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