In a significant decision, the Supreme Court has overturned its earlier ruling which had upheld a Kerala High Court judgment granting permanent custody of a minor child to his biological father. The apex court, comprising Justices Vikram Nath and Prasanna B. Varale, allowed a review petition filed by the child’s mother, reinstating custody in her favor.

 The Court ‘s decision was  driven  by concerns over the child’s psychological wellbeing, which had deteriorated after the custody was transferred to the father.

 Acknowledging  the restrictive scope of its review jurisdiction, the bench  noted that such jurisdiction can only be exercised on specific grounds, like the emergence of "new and important evidence, error apparent on the face of the record, or any other sufficient reason." However, it added that in custody-related disputes, a more  sensitive approach is warranted, keeping in mind  what  best  serves the child’s welfare . Emphasizing this point, the Court observed:

“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.”

Background

The dispute traces back to a marriage between the petitioner (mother) and the respondent (father) solemnized in 2011, from which a son was born in 2012. The couple subsequently separated and agreed to mutually dissolve their marriage. As part of the divorce settlement, the mother was granted custody of the child, with the father receiving visitation rights twice monthly. The Family Court in Attingal formalized this arrangement through a divorce decree on June 26, 2015.

Following the divorce, the petitioner remarried and had another child. She resided with her new husband and children in Thiruvananthapuram. According to the respondent, he lost contact with the child and the petitioner between 2016 and 2019. He claimed he was unaware of their location until October 2019, when the petitioner contacted him seeking signatures required for the child's travel abroad. At this point, he learned not only of her remarriage but also her intention to relocate the child to Malaysia and change the child’s religion.

In response, the respondent moved the Family Court seeking permanent custody. The petitioner filed a counterclaim seeking permission to take the child overseas. On October 31, 2022, the Family Court granted permanent custody and guardianship to the mother and permitted her to take the child abroad during holidays, while granting the father visitation rights.

 Both parties challenged the Family Court ruling. 

  Reversal Of High Court Order And  Supreme Court Review

On October 17, 2023, the Kerala High Court reversed the lower court's decision, awarding permanent custody to the father and limiting the mother's role  to virtual and in-person visits. The High Court reasoned that relocating the child to Malaysia would not be in the child's best interest.

The petitioner-mother took the matter to the Supreme Court. Initially, on November 24, 2023, the Court issued a notice and passed an interim order allowing weekly visitation rights. However, on August 22, 2024, the appeals were dismissed, and  the High Court’s judgment was affirmed.

Subsequently, the petitioner filed a review petition citing significant post-judgment developments, particularly relating to the child's mental health. She submitted a report dated September 3, 2024, by a clinical psychologist, which indicated that the 11-year-old child was showing signs of  heightened  anxiety  disorder caused by separation. 

The petitioner also alleged that the father made threatening statements to the child about taking him away from his mother, which allegedly worsened the child’s condition. Four  psychological evaluations supported this claim, all of which suggested that the child was distressed and anxious about a possible  custody change.

Court’s Findings and Reasoning

The Supreme Court treated these psychological assessments as new evidence that could not have been presented earlier and found them to have a  bearing on the outcome of the custody decision. Considering the  adverse impact on the child’s mental wellbeing, the Court found grounds to intervene.

“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 bench stated.

The Court underscored that the child had been living with the mother since infancy and regarded her as his primary caregiver. Furthermore, the child was emotionally bonded with the mother’s new family—her husband and the child from the second marriage and saw them as his immediate family.

  In contrast, the child had never stayed overnight with the father and perceived him as a stranger. The Court opined that transferring custody would unsettle the child and cause psychological harm.

Accordingly, the Court allowed the review petitions and reinstated the civil appeals. It overturned the High Court’s October 2023 order and reaffirmed the Family Court’s October 2022 decision, with modifications concerning visitation rights. 

• Custody: The petitioner-mother will retain permanent custody of the child.

• Visitation: The respondent-father will be entitled to both virtual and in-person visitation.

• Relocation: The petitioner is barred from relocating the child outside India, except during Onam, Christmas, and for half of the summer vacation. Such travel is subject to prior notice to the Family Court and the father.

•  Both parties must participate in regular psychological counselling. A fresh psychological evaluation must be conducted at CMC Vellore by October 31, 2025.

Additionally, the Court advised both parents to ensure mature communication and not allow past grievances to influence the child. While the Court made no definitive ruling on the alleged threats made by the respondent, it issued a caution against “any insensitive remarks” and stressed that rebuilding the father-son relationship should be done “gradually through patience and empathy.”

CASE Details: N vs R