Supreme Court Reviews Order Granting Custody To Father After Child Developed Stress Due To Separation From Mother

The Supreme Court set aside its previous order affirming a Kerala High Court judgment granting permanent custody of a minor child to his biological father.

Allowing the mother's review petition, a bench of Justice Vikram Nath and Justice Prasanna B. Varale restored 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.

However, in custody matters, courts must adopt a flexible approach in line with the child's best interests, the court said.

“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. 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”, the Court observed.

The petitioner-mother and respondent-father were married in 2011 and a son was born in 2012. The couple began living separately and entered into an agreement to dissolve the marriage by mutual consent and agreed that the mother would have custody of the child, while the father would have visitation rights twice a month.

A divorce decree was granted by the Family Court, Attingal on June 26, 2015. The petitioner remarried and had a child from this second marriage. She lived in Thiruvananthapuram with her new husband and children. According to the respondent, he was unaware of the child's and petitioner's whereabouts from 2016 to 2019, and it was only when the petitioner contacted him in October 2019 to get signatures for the child's international travel that he learned of the remarriage and intent to relocate the child to Malaysia.

Upon learning of the proposed relocation and change in the child's religion, the respondent approached the Family Court, seeking permanent custody. The petitioner filed a counterclaim seeking permission to take the child abroad.

On October 31, 2022, the Family Court granted permanent custody and guardianship to the petitioner and allowed her to take the child abroad during holidays, while granting the father limited visitation rights.

Both parties appealed. On October 17, 2023, the High Court granted permanent custody to the respondent-father, with virtual and physical visitation rights to the mother. The High Court noted that relocating the child to Malaysia would not be in his best interest.

The mother challenged the High Court judgment. 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 petitioner 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.

“The core and inalienable standard is the paramount consideration of the child's welfare, which is affected by an array of factors, is ever evolving and cannot be confined in a straitjacket. Therefore, each case has to be dealt with on the basis of its unique facts and take into account any change in circumstances which have an impact on the quality of a child's upbringing”, the court observed.

It found that the child had lived exclusively with the petitioner 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 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,

The Court also held that the petitioner cannot relocate the child outside India except during Onam, Christmas, and for 50% of summer vacation, with prior intimation to the Family Court and the respondent.

The Court directed both parties are directed to participate in regular psychological counselling and seek a fresh psychological assessment from CMC, Vellore by October 31, 2025.

The Court also advised both parents to ensure effective communication and avoid letting past disputes affect the child. While refraining from making findings on the alleged threats by the respondent, the Court cautioned him against any insensitive remarks and emphasised that the child-father bond must be developed gradually through patience and empathy.

Case Title: N vs R 

Citation : 2025 LiveLaw (SC) 714

Click Here To Read/Download Order