Tania Kousar vs Mohammad Nadeem S — 2026 YLR 1219 HIGH-COURT-AZAD-KASHMIR

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Tania Kousar VS Mohammad Nadeem S. 25---Custody of minor girl---Father, entitlement of---Scope---Maternal or paternal grandmother, right of---Preference---Welfare of minor---Scope---Application filed by the father was accepted and the custody of the minor girl was ordered to be handed over from her maternal grandmother to him---Validity---In all the matters pertaining to the custody of a minor, the paramount and overriding consideration is the welfare of the child---The rights of the father or the mother, or any other guardian, are secondary to said fundamental principle---The Court is required to assesses all attending circumstances, including the moral, intellectual, physical, social and educational well-being of the minor, in order to determine where the welfare of the child would be better served---In the present case, the minor girl appeared before the Court in person and when she was asked with whom she was ready to go she at once replied that she is residing with her maternal grandmother since her birth and she doesn't know her paternal grandmother as well as her father, so, she will not go with them---In the Court's query she was repeatedly asked the same question but her reply was only to live and go with her maternal grandmother; she appeared to be very happy along with her maternal grandmother, so, in such like eventualities, when the minor is happy with her maternal grandmother and had totally refused to go with her father or paternal grandmother, then how she could be forcibly asked to go and live at her father's house---Trial Court illegally ordered to handover her custody to the father despite the fact that he was not in the country and seemingly was stated to be abroad---Ostensibly minor girl was looking in good health and safeguard under the umbrella of guardianship of her maternal grandmother---Tug of war over guardianship was practically between maternal grandmother and paternal grandmother---There was no automatic preference between maternal grandmother and paternal grandmother, the law i.e. 'Guardians and Wards Act' does not rank maternal or paternal grandmother above the other, both are considered close blood relatives and may be appointed as guardian depending on welfare, not lineage ---Maternal grandmother should be preferred when put to selection: (i) if she has already been caring for the minor; (ii) the child is very young; (iii) the atmosphere in paternal home is unsuitable (neglect etc.)---Welfare overrides strict rules of "Hizanat" and maternal relatives can be preferred---High Court set-aside the impugned judgment keeping in view the welfare of the minor, and the custody of minor girl was ordered to be given to her maternal grandmother with whom she had been associated for a long time ---Appeal was allowed.

Tania Kousar vs Mohammad Nadeem S — 2026 YLR 1219 HIGH-COURT-AZAD-KASHMIR

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