Utmost Sincerity & Love Showered By Either Parent, By Itself, Not A Ground To Decide Custody; Paramount Consideration Should Be Welfare Of Child: Supreme Court

The Supreme Court was considering a matter pertaining to the custody of the children.

The 3-Judge Bench of Justice Vikram Nath, Justice Sanjay Karol and Justice Sandeep Mehta asserted, “There are series of judgments by this Court wherein, it has been authoritatively held that in cases of child custody, the paramount consideration should be the welfare of the child. The utmost sincerity, love and affection showered by either of the parents, by itself, cannot be a ground to decide the custody of a child.”

Senior Advocate Haripriya Padmanabhan represented the Appellant, while Senior Advocate Dr. Rajesh Kumar Pandey represented the Respondent.

Factual Background

The appellant and the respondent, highly qualified professionals, got married in 2014. They have a son and a daughter. The spouses faced marital discord in the year 2017, and accordingly, both started living separately with occasional attempts at restoring the matrimonial ties. In one of these attempts at reconciliation in the year 2021, the appellant again conceived and gave birth to a son, who is presently about three years of age. The appellant-mother felt a threat perception that the respondent-father may try to forcibly remove the children from her custody. Thus, she filed an original petition, seeking permanent custody of the children under the provisions of the Guardians and Wards Act,1890, in the Family Court, and the proceedings are still pending final adjudication.

The Family Court passed an order restraining the respondent-father from forcibly removing the minor children from the custody of the appellant-mother. Thereafter, the respondent-father applied, seeking interim custody/visitation rights. The father was granted visitation rights, and he was permitted to visit and interact with the children on the second Saturday of every month at the Court premises. On an original Petition filed by the father, the Kerala High Court granted interim custody of the children to him. The appellant-mother approached the Apex Court through the appeal by special leave, assailing the said order of the High Court.

Reasoning

The Bench took note of the serious concerns raised by the mother regarding the environment being provided to the daughter during the interim custody period of 15 days granted to the respondent-father by the High Court. It was brought to the Court’s notice that the respondent-father had not engaged a nanny in terms of the High Court’s direction.

The Bench was of the view that the interim arrangement, as charted out by the High Court in the impugned order, granting 15 days’ alternative custody of both the children to the parents, was neither feasible nor conducive to the well-being, mental and physical, of the children. The younger of the two children being the son aged about three years, had hardly lived with his father, who lives and works in Singapore. “Thus, directing the custody of the tender aged boy to be assigned to the respondent-father, even on an interim basis for a period of 15 days each month, is grossly unjustified and may have serious adverse effects on the emotional and physical well-being of the child and may create a sense of deep insecurity in the boy owing to forced separation from the mother. The interim arrangement made by the High Court to the extent of the three-year-old son is totally uncalled for and unsustainable on the face of the record and is hereby set aside”, it stated.

Coming to the aspect of interim custody of the eight-year-old daughter to the respondent-father, the Bench noticed that the father was not in a position to provide nutritious home-cooked food to the child and there was continued consumption of food procured from restaurants/hotels. As per the Bench, it couldn’t be expected that during the periodic custody arrangement, the father would be in a position to give continued attention to the child for the entire span of time during which he has access to the child. He would have to spare time for his job, daily pursuits, etc. and during this period, the child would be left all alone without anyone to keep her company.

However, the parents of the appellant-mother are staying with her, and she also has the advantage of the facility of working from home. It was further noticed that the younger brother of the girl child is there to provide her healthy company. “Hence, the emotional and moral support which the child gets at her mother’s home is manifold than what is being provided by the father during the interim custody period. The period of 15 days during which the daughter would be with the father would also lead to deprivation of her company to her sibling, the boy child aged three years.”

Holding that the High Court erred in granting interim custody of the children to the respondent-father for 15 days every month, the Bench said, “The periodic division of custody is definitely adverse to the well-being; physical, mental and emotional, of the children. In a long run, this arrangement may prove extremely harmful and may cause irreversible mental trauma to both the children.”

Thus, the Bench allowed the appeal and directed that the father shall be entitled to interim custody of the daughter on alternate Saturdays and Sundays of every month. The Bench also ordered, “On either of these two days, the respondentfather will be entitled to meet and have interim custody of the boy child for a period of four hours subject to the comfort of the child. This period of four hours interim custody of the boy shall be supervised by a child counsellor, who is to be engaged by the respondent father with prior approval of the family Court.”

Cause Title: Arathy Ramachandran v. Bijay Raj Menon (Neutral Citation: 2025 INSC 587)

Appearance:

Appellant: Senior Advocate Haripriya Padmanabhan, AOR Santosh Krishnan, Advocate Sonam Anand

Respondent: Senior Advocate Dr. Rajesh Kumar Pandey, AOR Aswathi M.K.

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