Children Should Be Summoned To Court Only In Unavoidable Circumstances During Custody Cases: Kerala High Court

The present case arose from an appeal filed by a mother against a family court order that reversed an earlier mutual consent-based arrangement granting her permanent custody. The revised order gave primary custody to the father and granted the mother only limited visitation rights. She challenged the order, arguing that it was contrary to the child’s wishes and emotionally damaging to him.

The Division Bench comprising Justice Devan Ramachandran and Justice MB Snehalatha observed that compelling children to attend court proceedings can cause deep psychological distress, making them feel as though they are being reduced to tools in their parents' disputes.

"Our experience has shown that children are unwilling to go to Courts, or to be taken there under orders; and many of them have told us, in unequivocal expression of angst, that they feel that they are being paraded as articles, rather than as humans," it added.

In light of such experiences, the Court has issued explicit instructions to family courts, advising that the physical presence of children should not be mandated unless it is absolutely necessary.

The Court said, “We, therefore, order that, 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. Even in cases where children are so asked to be produced, every care ought to be employed to ensure that they are treated with the highest amount of dignity and privacy that any child would require; and are not made to wait ad infinitum for the proceedings to get over, but given preference, subject to the workload of the Court."

Additionally, the High Court criticized the practice of using court premises as a default site for custody exchanges, stating that such practices only exacerbate a child’s distress. It directed, "When it comes to the place of exchange of the child for interim or final custody, we order that the use of the Court premises – which we understand, is essentially to enter such appearance in the registers maintained by it - be avoided, unless exceptional reason is recorded; and a neutral place be thought of – preferably as per consent of parties - since this will, to a large extent, reduce the strain of the children and their fear, which they unfortunately endure on account of being forced to submit themselves to processes, over which they have no control on and which they did not seek."

The Bench explained that these directions stem from the long-term psychological harm that such court experiences may cause.

The Court added, "Children who see hostility between parents are shown to have lower satisfaction levels in their own relationships in future; with some reporting negative views on family structures, marriage and relationships in general. It is also well documented that smaller children who have gone through high conflict of their parents are less able to solve problems, negotiate interpersonal relationships and have higher levels of social anxiety. They are also known to experience higher fear of abandonment and rejection – which may lead to traits of Complex Trauma and Personality Disorder."

The Court noted, "The child appears to be more terrified and agonized not on account of the proceedings between his parents; but because, he has been caught in between and has been forced to appear in Courts every now and then. 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. 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; and told us, as he was walking away, that he will never enter a Court again, even if called."

Importantly, the Court noted that a previous assurance had been made by another bench that the child would not be brought back to court, an assurance that was not honoured, thereby damaging the child’s trust in the judicial process.

Ultimately, the High Court allowed the mother's appeal and reinstated the original order granting her custody. In a move aimed at reducing further psychological distress, the Court ordered that future custody exchanges take place at Mahatma Mandiram instead of the Munsiff Court in Kannur.

Cause Title: X v. Y, [2025:KER:29544]

Appearance:

Appellant: Advocates D Arun Bose, K Viswan, and PS Pooja,

Respondent: Advocates VA Hakeem, Habnam Hakeem, Sivalakshmi K, Alka Maria Martin, and Rahul O.

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