Children Born To Parents When In Love Become Victims Of Their Strife: Kerala High Court Highlights Children's Trauma In Matrimonial Disputes

In a habeas corpus plea filed by a mother alleging illegal detention of her two children by their father, the Court went beyond legal formalities and confronted a painful reality, custody battles are often driven by parental ego, while children bear the psychological scars. The Court was confronted with a heart-wrenching moment when the children, with tears ‘flowing like streams of water’, pleaded that their parents should not separate, an experience that ‘took a toll on the Court’s way of looking at it’ and shaped the Bench’s approach to the case, shifting the focus firmly from parental claims to the emotional and constitutional rights of the child.

Justice Devan Ramachandran and Justice M.B. Snehalatha making peculiar emotional observations noted, “It does not require us to expatiate that children, in custody matters, are victims who are drawn into the battle between their parents for nothing that they can comprehend, or for anything they have contributed. They are born to parents when they are in love; but when they fall out, children become the victims of their strife…the children deeply desires the parents to be together; and when we made an arrangement on the 25th of February 2026, that they shall be with the mother for a brief period, they entreated us to ensure that, their parents do not separate. This was not done with a straight face, but with uncontrollable tears in their eyes, flowing like streams of water; and this took a toll on our way of looking at it also”.

“Custody is not an evaluation of choice between the parents, as is now often seen to be; but recognition of the constitutionally protected rights of the child, to have both parents. Custody is not separation or alienation from one of the parents; but entrustment in the most apposite manner, for the child to be ensured a deserving life, free of strife and anxiety…. In the heat of the moment and the fervor of litigation, parents rarely recognize this; but, push on relentlessly, under the self-assuaging impression that they are doing it for the best interests of their children; when, in fact, they, perhaps unwittingly, do so for themselves”, the Bench remarked.

Advocate C.S. Sindhu Krishnah appeared for the petitioner and Senior Advocate T. Sethumadhavan appeared for the respondent.

In the matter, the Bench further emphasised that courts must move away from a “parent-centric” approach and instead adopt a child-centric framework, focusing on emotional, psychological, and developmental needs rather than competing parental rights.

What made the case particularly poignant was the Court’s interaction with the children, aged 10 and 12, who appeared before the judges in chambers. In an emotionally charged moment, the children broke down, pleading not for custody with one parent, but for both their parents to stay together.

The Court noted that a child’s expressed preference, often viewed with suspicion as ‘tutored’, must instead be understood in the context of emotional vulnerability and adaptive behavior.

“When children are produced by one of the parents in obedience to orders, there is always an axiomatic suspicion impelled by the other that, he or she is tutored to show alienation; but, in our long experience, when we allowed the child/children to remain with the parent not in custody, for a sufficiently long time, the situation changed, with the former expressing affection, which had been long concealed or suppressed”, it noted.

Recognising that the children’s true desire was not to “choose” between parents but to have equal love and presence from both, the Court endorsed a balanced arrangement agreed upon by the parties. Custody was retained with the father, while the mother was granted weekend custody, along with equal sharing of holidays and vacations. Importantly, the Court directed that children must have unrestricted communication with the non-custodial parent at any time, reinforcing their right to maintain emotional bonds with both.

Closing with a poignant reflection, the Court observed, “The love of a parent never wanes, it only waits. A choice between a parent for a child is the most excruciating one that anyone can think of; and when it is done through forums that they fathom so little of, it makes the damage far more real and palpable… It is the womb of a mother, in which every child resides first; and he or she can hence be separated from her only for the most compelling reasons. The presence of the father in the child's life is equally unexpendable; and this is the tenet of nature.”.

“Custody arrangements, made judicially, depend upon the factual factors presented and established; and every court, acting in parens patriae is enjoined to make assessments on the underpinned “best interests standards” for children, without being influenced or carried away by the acrimony the parties engage in; finally to ensure that children are able to obtain a life insulated from such, with equal company assured - to the extent possible, of both their parents. This is the predominating obligation of the legal system to every child”, the Bench further noted in the judgement.

Cause Title: X v. State Of Kerala & Ors. [Neutral Citation: 2026:KER:20633]

Appearances:

Petitioner: C.S. Sindhu Krishnah, R. Sanjith, Advocates.

Respondent: H. Praveen, P. Narayanan, Spl. G.P., T. Sethumadhavan, Senior Advocate, Sunilnath,  G.P., Advocates.

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