"Court Cannot Turn a Blind Eye to the Trauma Inflicted on the Child": Supreme Court Restores Custody to Mother, Directs Structured Visitation Rights for Father Based on Psychological Evidence
Kiran Raj
The Supreme Court of India Division Bench of Justice Vikram Nath and Justice Prasanna B. Varale held that permanent custody of a minor child shall remain with the mother, reversing an earlier order that had granted custody to the father. The court directed that the father shall be allowed specific visitation rights, both virtual and physical, to maintain a connection with the child. The court restored the trial court’s order and set aside the High Court’s decision, following a review petition filed by the mother citing new developments related to the minor child's mental health.
The court allowed the review petitions and civil appeals, stating that new evidence concerning the psychological impact of custody transfer on the minor justified reconsideration. The court recalled its earlier judgment dated 22.08.2024 and affirmed the custody conditions originally laid out by the Family Court, with modified visitation rights for the father.
The bench concluded that given the child's age and emotional dependency on the mother, his welfare would be best served by remaining in her custody. However, the court recognized the father’s right to maintain a relationship with his child and accordingly issued a structured visitation schedule, advising both parents to prioritize the child’s psychological and emotional well-being.
The dispute pertains to the custody of a minor child born on 07.11.2012 to a couple who were married on 04.09.2011 according to Hindu rites. The couple separated on 22.10.2013 and subsequently filed for divorce by mutual consent, which was granted by the Family Court, Attingal, Kerala on 26.06.2015. As part of the divorce settlement dated 13.09.2014, the petitioner-mother was granted custody of the child, while the respondent-father was awarded visitation rights on two Saturdays each month.
On 18.08.2016, the petitioner remarried one Handel Thomas, who had two children from a prior marriage and with whom she had another child. The petitioner resided in Thiruvananthapuram with her new family. Between 2016 and 2019, the respondent reportedly had no contact with the child and was unaware of the petitioner’s whereabouts. He only reestablished contact in October 2019 when the petitioner approached him for signatures on affidavits needed for the child’s travel abroad. The child’s proposed relocation to Malaysia and change of religion without the father's knowledge prompted the respondent to seek legal custody.
The respondent filed OP(G&W) No. 2353/2020 in the Family Court, Thiruvananthapuram, which was later transferred to the Family Court at Ottapalam. He sought permanent custody of the minor, while the petitioner filed a counterclaim seeking permission to take the child abroad. The trial court, on 31.10.2022, rejected the respondent’s request, granted permanent custody to the petitioner, and laid down detailed visitation terms, including physical interaction every second and fourth Saturday and conditional permissions for foreign travel during holidays.
Both parties appealed to the High Court of Kerala. On 17.10.2023, the High Court reversed the trial court’s order, granting permanent custody to the respondent and allowing the petitioner virtual and limited physical access during school holidays. The High Court reasoned that relocating the child to Malaysia was not in the child’s best interest.
The petitioner challenged the High Court decision in the Supreme Court through SLP (C) Nos. 25528-25529/2023. The Court initially issued an interim order on 29.01.2024 directing weekly physical visits and later converted the SLPs into Civil Appeal Nos. 5395-5396 of 2024. However, on 22.08.2024, the appeals were dismissed, affirming the High Court’s judgement.
Following this, the petitioner filed the present review petitions (R.P. (C) Nos. 2273-2274/2024) under Article 137 of the Constitution, citing new psychological reports that indicated severe anxiety and possible separation anxiety disorder in the minor due to the custody shift. The petitioner submitted four reports from the Psychiatry Department of Christian Medical College, Vellore dated 03.09.2024, 19.10.2024, 07.01.2025, and 29.03.2025.
These reports documented heightened anxiety levels in the child, emotional difficulty, and deterioration in well-being, recommending that he not be separated from his current family. Based on these reports and evolving facts, the petitioner requested review of the earlier Supreme Court judgment.
The respondent opposed the review on grounds that the psychological reports were based on parental input and that he had been kept unaware of the child's location from 2016 to 2019. He argued that his limited contact was not due to indifference but to the petitioner’s actions. He further submitted that he was a government employee, financially stable, and capable of supporting the child.
The review petitions were listed for an open court hearing, and both parties presented arguments on merits. The petitioner stated her continuous caregiving role and the child’s strong emotional attachment to her, stating the adverse psychological impact of the custody transition. The respondent reiterated his intent to be involved in the child’s life and his capability as a father.
The Supreme Court recorded that "the child’s deteriorating mental health as a consequence of judicial order changing custody is a new development and a direct consequence of dismissal of appeals by this Court." The court acknowledged that "the psychological assessment reports on the record certainly constitute new evidence which was not within the knowledge of the review petitioner at the time of hearing appeals."
The bench applied the "triple test" from State of West Bengal & Ors. v. Kamal Sengupta & Ors. and concluded that the evidence met all three criteria. It recorded that "change in the child’s emotional, mental and overall health ... undeniably becomes a matter of such nature that has a direct bearing on the decision with the possibility to change it."
It observed that "custody orders are always considered interlocutory orders ... and cannot be made rigid and final" and that "the best interest of the child remains at the heart of judicial adjudication."
On reviewing the child’s upbringing, the court stated, "the child has remained in the exclusive care of the petitioner since the age of eleven months old" and "in moments of distress and heightened emotions, the child seeks refuge in his mother’s arms." It noted that "the stepfather has also openly extended a shield of affection and care" and "the child’s best interests are being taken care of well in the current setting."
In contrast, it remarked that "the child has not had a real chance to form an emotional bond with his biological father" and that "the change in permanent custody shall also essentially amount to upending the very core of the stable and familiar environment in which the child currently lives."
Regarding the father's visitation rights, the court stated, "the father-son relation can only be fostered patiently over the course of years, marked by his continued presence and responsibility-bearing attitude."
The Supreme Court held that "the minor child is to remain in permanent custody of the petitioner-mother." It further directed that "the respondent-father is allowed to see and interact with the child virtually twice a week for thirty minutes each," and "the exact time of such virtual interactions is to be worked out between the parties."
The court mandated that "the petitioner is directed to provide an interference-free environment to the child and respondent, and ensure that she does not meddle in such conversations."
It allowed "the respondent to visit the child in-person for one day every weekend" and that "the petitioner is directed to produce the minor child before the Chief Ministerial Officer/in-charge of the Family Court, Ottapalam on every Saturday at 10 a.m."
The petitioner was "strictly restrained from changing the current place of residence of the minor to outside India," but permitted "to take the child with her to abroad only during Onam, Christmas and for 50% of the period of the total days of the child’s summer vacations."
She was required to "submit a statement before the Family Court, Ottapalam as to the details of the country, place of residence with address, duration of stay etc.," and "also file a statement after arrival." These details must also be "shared with the respondent via e-mail, at least ten days prior to the date of said travel."
Regarding psychological care, the court directed that "the petitioner is directed to continue to keep the child under the care and observation of the psychologists with routine sessions," and that "the respondent ... is also directed to partake in the counselling sessions."
It instructed both parties to "seek a re-assessment of the child’s health at CMC, Vellore, within three months from this order, i.e. before 31st October 2025."
It declined "any over-night stay permission or longer visitation rights" to the respondent at present but allowed "liberty to prefer an application before this Court seeking modification of the present order and more flexible visitation rights" upon positive progress.
Case Title: XXX V YYY
Neutral Citation: 2025 INSC 853
Case Number: R.P. (C) Nos. 2273-2274/2024 in Civil Appeal Nos. 5395-5396/2024
Bench: Justice Vikram Nath, Justice Prasanna B. Varale
