J&K HC pulls up family court for sending police to recover child from father

Srinagar, Aug 22 (IANS) The Jammu and Kashmir High Court has pulled up a family court in Srinagar for sending police to recover a five‑year‑old girl from her father.

Justice Rahul Bharti, in his judgement, flagged “legal shortcomings” and “insensitivity” on the part of the family court for issuing a search warrant and directing police to recover the child.

The case arose from a petition filed under Article 227 of the Constitution by Shadab Hussain Mir. Justice Bharti observed that a father’s custody of his child could not be considered illegal per se.

The petitioner and respondent had dissolved their marriage through a settlement agreement dated January 25, 2025, which granted custody of their minor daughter to the mother, subject to the condition that custody would revert to the father if she remarried.

After the mother remarried, the father took the child into his care. The mother then approached the 4th Additional District Judge (Family Court), Srinagar. On June 29, 2026, the Family Court ordered the SHO of Chanapora police station to execute a search warrant, recover the child and return her to the mother.

The High Court noted that the father was acting as a concerned parent under the mutually agreed compromise. Following the mother’s remarriage, his custody could not prima facie be branded as wrongful confinement or illegal custody.

Justice Bharti criticised the lower court for issuing an ex‑parte search warrant without inviting the father’s response or examining the facts thoroughly. He said sending police to a father’s home showed judicial insensitivity, adding that if recovery of the child was necessary, well‑meaning measures or a Women Police Cell should have been engaged instead of directing the local police station.

The bench also questioned whether a Family Court has the authority under Section 7 of the Family Courts Act, 1984, to exercise powers under Section 100 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). Justice Bharti noted that powers to issue search warrants under Section 100 of the BNSS are vested in District Magistrates, Sub‑Divisional Magistrates or First‑Class Magistrates, not Family Courts.

–IANS

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