Children in Custody Battles Must Be Called to Court Only in Unavoidable Situations and Treated With the Highest Dignity: Kerala High Court Sets Aside Custody Order Citing Child’s Trauma
Isabella Mariam
The High Court of Kerala Division Bench of Justice Devan Ramachandran and Justice M.B. Snehalatha set aside a custody order passed by the Family Court, Thalassery, and restored the previous custody arrangement between the parties. The Court held that the modified custody terms did not adequately consider the child’s trauma and unwillingness to leave the mother. The Court also issued guidelines for Family Courts to ensure children are not unnecessarily exposed to judicial proceedings or court premises. It directed that the place of custody exchange must be neutral and not within court premises, except in unavoidable circumstances.
The appeal arose from a custody dispute concerning a minor child, initially resolved through consent terms between the parties in proceedings before the Family Court, Thalassery. The respondent had filed a petition seeking permanent custody of his nine-year-old child. Based on the parties’ consent, custody was granted to the father, with specific weekly and holiday visitation rights accorded to the mother.
Subsequently, the custody arrangement was modified to change the place of exchange. Later, alleging that the mother was not complying with the custody arrangement, the father filed an interlocutory application (I.A. No. 3/2023), seeking further modification. In parallel, the mother filed I.A. No. 2/2022, asserting that the child was unwilling to go with the father and seeking an alteration of the terms in favour of her continued custody.
Both applications were heard together. By the impugned order, the Family Court allowed the father’s application and denied the mother’s request, altering the earlier arrangement. The revised order granted the father permanent custody of the child, limiting the mother to interim custody on a few specified days.
The appellant challenged this order before the High Court. Counsel for the appellant argued that the child was experiencing deep psychological trauma and was unwilling to go with the father. It was submitted that the child was even reluctant to enter the Family Court chamber and had consistently expressed distress due to repeated exposure to court proceedings. It was further argued that the order failed to give sufficient weight to the child’s mental condition and wishes.
In response, counsel for the respondent contended that the mother had influenced the child and that the father was fully capable of taking care of him. It was submitted that the Family Court had issued the modified order because the mother had allegedly failed to comply with earlier directions. The respondent asserted that the modification was necessary in light of her conduct.
On 25.03.2025, the High Court directed personal appearance of the parties and the child. On 02.04.2025, the Bench interacted with the child. In the morning session, the child was unwilling to leave the mother. In the afternoon, even after spending time with the father, the child showed increased reluctance and recounted personal experiences which he claimed had caused him distress. He expressed his dislike for courts, stating he felt dehumanized and traumatized by repeated summons and appearances.
The Court took note of the child’s condition, including a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD), and observed that the child's emotional state had deteriorated. It recorded that the child had refused to interact with the Family Court earlier and had conveyed to the High Court that he felt betrayed by the legal system.
Based on the child’s condition, unwillingness to go with the father, and the procedural background, the High Court proceeded to decide the appeal and formulate guidelines for future custody proceedings.
The Court recorded the emotional and psychological toll custody litigation had taken on the child. It stated: “Children loathe appearance in courts – which they have unreservedly told us in several cases – which they find to be dehumanizing, terrorizing, humiliating and demeaning their very being.”
The Bench further stated: “The child still exhibited extreme unwillingness to leave his mother, clinging on to her with more force than before; and then recounted to us certain incidents in his life, which he said had caused him shock and angst.”
The Court noted the depth of the child's trauma: “He undoubtedly hates this, telling us specifically that he feels dehumanized and stigmatized, being paraded in front of people as a virtual chattel of dispute between his parents.”
On the child’s interactions with the legal system, the Court stated: “His expression was luculent that he feels let down even by the legal system – which is expected to support and protect him – in being treated in such fashion.”
The Bench acknowledged a prior assurance given to the child in another proceeding: “We understand that the child feels betrayed; but must record that we were not kept aware of the earlier proceedings between the parties until now.”
Regarding the child’s medical condition, the Court recorded: “The records further reveal that the child is suffering from ‘Attention Deficit Hyperactivity Disorder’ (ADHD), and that he is obtaining professional assistance for the same.”
The Bench then addressed the Family Court’s impugned order, stating: “We cannot offer approval to the order now impugned; and that it will be imprudent for us to even suggest that the child go with the father in permanent custody.”
It added: “The arrangement earlier settled by the learned Family Court was certainly enough for both the parents to have shared custody of the child; and its modification was unnecessary.”
The Court clarified that the Family Court had misunderstood the circumstances: “The learned Family Court did so only because it was under the incorrect impression that it is the mother who was refusing to let the child be with the father.”
The Bench concluded on the child's firm resistance: “As long as the child is obdurately unwilling to go to the father, his claim for his permanent custody remains untenable.”
On general principles regarding children’s appearances in courts, the Court stated: “The exposure of children to the judicial system – be that for interaction or for other purposes – ought to be empathetically recognised by the Courts to leave a trail of distress in them in the future.”
It further ordered: “Except in exceptional and unavoidable circumstances, the presence of children in Court Halls and in public areas of the Court premises – even for the purpose of counselling, or such other statutory proceedings – be ordered sparingly and with great caution.”
The Court allowed the appeal and issued a series of binding directions, restoring the earlier custody arrangement and laying down procedural safeguards for future cases.
The Bench directed that the impugned order of the Family Court, Thalassery, be set aside. The judgment and decree earlier issued by the Family Court were restored, and the parties were directed to abide by it.
The Court set aside the previous modification of the custody order, which had fixed the place of exchange as the Munsiff Court at Kannur. Instead, it restored the original place of exchange to the “Mahatma Mandiram”, Kannur, as stated in the decree.
The Bench then issued guidelines for all Family Courts in the state. It ordered that the presence of children in court proceedings or premises, even for counselling or statutory purposes, be directed only in unavoidable and exceptional circumstances. Such orders must be made sparingly and with great caution.
The Court directed that if children are required to be present in court, they must be treated with dignity and privacy. Their waiting time should be minimized and they must be given preference in scheduling, subject to court workload.
It further ordered that court premises shall not ordinarily be used as the location for custody exchanges. A neutral location, preferably agreed upon by the parties, must be identified and fixed as the handover point.
In exceptional cases where use of court premises is unavoidable, the reasons must be recorded in writing. The Registry was directed to circulate the judgment to all Family Courts across the state for strict compliance.
Advocates Representing the Parties
For the Appellant: D. Arun Bose, Advocate; K. Viswan, Advocate; P.S. Pooja, Advocate
For the Respondent: V.A. Hakeem, Advocate; Habnam Hakeem (K/002100/2023); Sivalakshmi K. (K/496/2013); Alka Maria Martin (K/001291/2025); Rahul O. (K/1407/2025)
Full Case Title: Indu S. v. Thomas @ Manoj
Neutral Citation: 2025:KER:29544
Case Number: Mat.Appeal No. 288 of 2025
Bench: Justice Devan Ramachandran, Justice M.B. Snehalatha
[Read/Download order]
