'Best Interest': SC Reverses Order On Child Custody After He Develops Stress In Mother's Absence
The Supreme Court reversed one of its previous orders wherein it granted the custody of a child to his biological father, and handed the child over to his mother, in a case of marital separation. This came as reports showed the child had developed anxiety and distress in the absence of his mother.
A bench of Justice Vikram Nath and Justice Prasanna B Varale considered a review petition by the mother, and stated 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.
As the court granted the mother the custody of her child, the bench cited serious concerns over the child's psychological health following the earlier custody decision.
'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 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 her 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.
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 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 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.
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