Supreme Court hands over 12-yr-old to his mother after he develops anxiety, distress

The court reversed one of its previous orders where it had granted the custody of a child to his biological father, and handed the child over to his mother, in a case of marital separation.

A division bench of Justice Vikram Nath and Justice Prasanna B Varale heard a review petition by the mother, and said that its review jurisdiction is limited and can only be invoked on grounds such as discovery of new and important evidence, error apparent on the face of the record, or any other sufficient reason, News18 reported.

Granted the mother the custody of her child, the court observed serious concerns over the child’s psychological health following the earlier custody decision, separating him from his mother.

“There is no room for doubt that in matters of custody, the best interest of the child remains at the heart of judicial adjudication and a factor adversely impacting the child’s welfare undeniably becomes a matter of such nature that has a direct bearing on the decision with the possibility to change it," the court has been quoted as saying.

It further held that in the wake of new facts, the review petitions at hand were deemed worth entertaining under Article 137 of the Constitution of India and required indulgence of this court

According to the report, the petitioner-mother and respondent-father were married in 2011, and a son was born in 2012. However, they began living separately and entered into an agreement to dissolve the marriage by mutual consent. It was agreed initially that the mother would have custody of the child, while the father would have visitation rights twice a month.

Further in 2015, a divorce decree was granted by the Family Court, Attingal.

The petitioner-mother later remarried, had a child from her second marriage and lived in Thiruvananthapuram with her new husband and children.

According to the respondent-father, he was unaware of the child’s and petitioner-mother’s whereabouts for three years during 2016 to 2019. When the petitioner-mother contacted him in October 2019 to get signatures for the child’s international travel, he got to know about the remarriage and her intent to relocate the child to Malaysia.

As he got to know about the proposed relocation and change in the child’s religion from Hindu to Christian without his consent or knowledge, the father approached the Family Court, seeking permanent custody. His mother filed a counterclaim seeking permission to take the child abroad.

Around three years later in October 2022, the Family Court granted permanent custody and guardianship to the petitioner-mother and allowed her to also take the child abroad during holidays, while granting the father limited visitation rights.

He challenged this in the High Court, which granted him the child's custody. The mother moved the Supreme Court against this order, but the top court dismissed her appeal in August last year.

The mother approached the court with a fresh prayer, contending that the custody change order "caused an immense negative impact on the mental health of the child".

Her arguments were backed by a clinical psychologist's report, highlighting that the minor child has a high risk for separation anxiety disorder.

Custody orders, the court said, cannot be made "rigid" and courts can "mould" them in the best interest of the minor.

"The core and inalienable standard is the paramount consideration of the child's welfare, which is affected by an array of factors, is ever evolving and cannot be confined in a straitjacket," the court observed.

It found that the child had lived exclusively with the petitioner since he was 11 months old and viewed her as his primary caregiver.

The psychological reports showed he found comfort in her presence and saw her new husband and younger sibling as part of his immediate family unit.

The petitioner-mother also alleged that after the judgment, the father made threatening comments to the child about separating him from his mother, worsening his psychological condition.
The court also said in its order that it is contended that this is especially so in light of the fact that, since the respondent did not avail visitation rights since 2014, the child has not had the opportunity to form a bond with his biological father.

The court noted that four reports of the child's psychological assessment have indicated him to be undergoing significant anxiety, difficulty in coping with emotions and separation anxiety due to the looming threat of custody change.

The court said that even though the respondent-father wished to reconnect, the child had not spent even a night with him and saw him as a stranger. It held that shifting custody would destabilise the child and cause further trauma.