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The Supreme Court reversed its earlier custody order and granted the child’s custody to the mother, citing concerns over the child’s psychological wellbeing.
A file photo of the Supreme Court of India (PTI)
In a rare move, the Supreme Court reversed its August 2024 judgment of granting the custody of a child to his father, after some of the child’s medical reports suggested a decline in his health in the absence of his mother.
In its previous order, the top court had affirmed a Kerala High Court judgment, granting permanent custody of the 12-year-old to his biological father.
Allowing the mother’s review petition, a bench of Justice Vikram Nath and Justice Prasanna B Varale restored the child’s custody to the mother, citing serious concerns over the child’s psychological health following the earlier custody decision.
The Court reiterated that its review jurisdiction is limited and can only be invoked on grounds such as discovery of new and important evidence, error apparent on the face of the record, or any other sufficient reason.
“There is no room for doubt that in matters of custody, the best interest of the child remains at the heart of judicial adjudication and a factor adversely impacting the child’s welfare undeniably becomes a matter of such nature that has a direct bearing on the decision with the possibility to change it,” the court observed.
“Therefore, in the wake of new facts as detailed above, the review petitions at hand are deemed worth entertaining under Article 137 of the Constitution of India and require indulgence of this Court,” it added.
THE CASE
The petitioner-mother and respondent-father got married in 2011, and their son was born in 2012.
As they started living separately, they filed for a divorce, which was granted by the Family Court, Attingal on June 26, 2015. Initially, they agreed that the mother would have the custody of the child, while the father would have visitation rights twice a month.
Later, the mother of the child remarried and started living with her new husband in Thiruvananthapuram, and had children with him.
Meanwhile, the father was unaware of the child and the mother’s whereabouts from 2016 to 2019, until the mother, in October 2019, contacted him for his signatures for the child’s international travel.
It was then that the father learnt of his former wife’s remarriage and her intent to relocate the child to Malaysia.
To oppose the same, the father approached the Family Court, seeking permanent custody of the child. However, the mother filed a counterclaim seeking permission to take the child abroad.
On October 31, 2022, the Family Court granted permanent custody and guardianship of the child to the mother and allowed her to take the child abroad during holidays, while granting the father limited visitation rights.
Both parties later appealed, and on October 17, 2023, the High Court granted permanent custody of the child to the father, with virtual and physical visitation rights to the mother. In its order, the court noted that relocating the child to Malaysia would not be in his best interest.
The mother challenged the High Court judgment, and on November 24, 2023, the Supreme Court issued notice and granted an interim arrangement for weekly visitation. The appeals were dismissed on August 22, 2024, confirming the High Court’s custody order.
The mother sought review of the August 2024 decision, citing subsequent developments affecting the child’s mental health.
A clinical psychologist’s report dated September 3, 2024, indicated that the child, then aged 11, displayed anxiety and was at high risk for separation anxiety disorder.
The petitioner also alleged that after the judgment, the father made threatening comments to the child about separating him from his mother, worsening his psychological condition. Four subsequent psychological reports indicated continuing anxiety and distress caused by the fear of custody change.
The Supreme Court held that the psychological reports constituted new evidence that could not have been produced earlier and had a direct bearing on the outcome. The deterioration in the child’s mental health was a post-judgment development warranting interference.
It found that the child had lived exclusively with the mother since he was 11 months old and viewed her as his primary caregiver. The psychological reports showed he found comfort in her presence and saw her new husband and younger sibling as part of his immediate family unit.
The court noted that even though the respondent-father wished to reconnect, the child had not spent even a night with him and saw him as a stranger.
It held that shifting custody would destabilise the child and cause further trauma.
The court, thus, allowed the review petitions and restored the civil appeals.
It set aside the High Court’s October 2023 order and reaffirmed the Family Court’s October 2022 decision, with modified visitation terms, holding that the petitioner-mother will retain permanent custody and the respondent-father will have virtual and in-person visitation rights.
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Vani Mehrotra is the Deputy News Editor at News18.com. She has nearly 10 years of experience in both national and international news and has previously worked on multiple desks.
Vani Mehrotra is the Deputy News Editor at News18.com. She has nearly 10 years of experience in both national and international news and has previously worked on multiple desks.
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