J&K HC slams Srinagar family court for using police to take child from father
Synopsis
The J&K High Court has rebuked a Srinagar family court for sending police with a search warrant to take a five-year-old from her father — a man acting under a mutual divorce agreement that explicitly gave him custody if his ex-wife remarried. Justice Rahul Bharti's ruling raises a sharp jurisdictional question: can a Family Court even issue such a warrant under the BNSS?
Key Takeaways
The Jammu and Kashmir High Court criticised the 4th Additional District Judge (Family Court), Srinagar for issuing a search warrant to recover a five-year-old girl from her father.
Justice Rahul Bharti flagged 'legal shortcomings' and 'insensitivity' in the lower court's ex-parte order dated 29 June 2026 .
The father had taken custody after the mother remarried, in line with their settlement agreement of 25 January 2025 .
The High Court questioned whether a Family Court has jurisdiction to issue search warrants under Section 100 of the BNSS — a power reserved for magistrates.
The court said a Women Police Cell or 'well-meaning measures' should have been used instead of directing the local police station.
The Jammu and Kashmir High Court has sharply criticised a family court in Srinagar for dispatching police to recover a five-year-old girl from her father, flagging the move as legally flawed and judicially insensitive. The ruling, delivered by Justice Rahul Bharti, came on a petition filed under Article 227 of the Constitution by Shadab Hussain Mir.
Background: The Custody Dispute
The case stems from a dissolution of marriage through a settlement agreement dated 25 January 2025, under which custody of the couple's minor daughter was granted to the mother. Crucially, the agreement included a condition: custody would revert to the father if the mother remarried.
After the mother did remarry, the father took the child into his care in accordance with the terms of that agreement. The mother subsequently approached the 4th Additional District Judge (Family Court), Srinagar, seeking the child's return.
What the Family Court Ordered
On 29 June 2026, the Family Court directed the SHO of Chanapora police station to execute a search warrant, recover the child, and hand her over to the mother. The order was passed ex-parte — without inviting any response from the father.
High Court's Findings
Justice Bharti found 'legal shortcomings' and 'insensitivity' in the Family Court's approach. The High Court observed that a father acting under a mutually agreed compromise, following the mother's remarriage, could not prima facie be characterised as committing wrongful confinement or holding the child in illegal custody.
The bench also raised a pointed jurisdictional question: whether a Family Court possesses 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 the power to issue search warrants under Section 100 of the BNSS is vested exclusively in District Magistrates, Sub-Divisional Magistrates, or First-Class Magistrates — not Family Courts.
On Judicial Sensitivity in Child Custody
Justice Bharti was unsparing in his criticism of the method employed. He observed that sending uniformed police to a father's home to retrieve a young child reflects a failure of judicial sensitivity. The court noted that if recovery was deemed necessary, 'well-meaning measures' or a Women Police Cell should have been engaged rather than directing the local police station to execute a search warrant.
This ruling adds to a growing body of High Court judgements across India urging family courts to prioritise child welfare and due process over mechanical enforcement of custody orders. The case now serves as a pointed reminder that procedural safeguards and proportionality must guide courts even — and especially — in sensitive family matters.
Point of View
Sending uniformed officers to retrieve a child from a parent acting under a court-approved agreement is the kind of blunt instrument that can cause lasting psychological harm. The J&K High Court's intervention is a necessary corrective, but the fact that such an order was passed ex-parte in the first place points to a systemic gap in how family courts weigh child welfare against procedural shortcuts.
NationPress
23 Aug 2026
Frequently Asked Questions
Why did the J&K High Court pull up the Srinagar family court?
The High Court criticised the family court for issuing an ex-parte search warrant directing police to recover a five-year-old girl from her father, without hearing his side or examining the facts. Justice Rahul Bharti called the move legally flawed and judicially insensitive.
What was the custody agreement between the parents?
The couple dissolved their marriage through a settlement agreement dated 25 January 2025, granting custody of their daughter to the mother. The agreement stipulated that custody would revert to the father if the mother remarried — which she did, prompting the father to take the child into his care.
Can a Family Court issue a search warrant under the BNSS?
The J&K High Court questioned this, noting that powers to issue search warrants under Section 100 of the Bharatiya Nagarik Suraksha Sanhita are vested in District Magistrates, Sub-Divisional Magistrates, or First-Class Magistrates — not Family Courts acting under Section 7 of the Family Courts Act, 1984.
What alternative did the High Court suggest for recovering the child?
Justice Bharti said that if recovery of the child was genuinely necessary, the court should have engaged 'well-meaning measures' or a Women Police Cell rather than directing the local police station to execute a search warrant at the father's home.
Who filed the petition before the J&K High Court?
The petition was filed by Shadab Hussain Mir, the father, under Article 227 of the Constitution, challenging the family court's order directing police to recover his daughter from his custody.
