Full Judgment Text
2025 INSC 587
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2025
(Arising out of SLP (Civil) No (s). 31099 of 2024)
ARATHY RAMACHANDRAN ….APPELLANT(S)
VERSUS
BIJAY RAJ MENON ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Heard.
2. Leave granted.
1 2
3. The appellant and the respondent , who are both
highly qualified professionals, tied the knot in the year
2014. From their wedlock, two children were born-the
Signature Not Verified
1
Hereinafter, being referred to as ‘appellant-mother’.
2
Hereinafter, being referred to as ‘respondent-father’.
Digitally signed by
SONIA BHASIN
Date: 2025.04.29
17:57:21 IST
Reason:
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first being the daughter, on 23.07.2016, and the second
being the son, on 05.07.2022. The custody of the
children is the subject matter of the present lis .
4. We are informed that at present, the appellant-
mother is employed in an IT company which allows her
to work from home. The respondent-father is reportedly,
working as a General Manager in a construction
company at Singapore. It seems that 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 the son, who is presently
about three years of age.
5. The appellant-mother felt a threat perception that
the respondent-father may try to forcibly remove the
children from her custody. Thus, in June, 2024, she
filed an original petition, bearing O.P. (G&W) No. 1185
of 2024, seeking permanent custody of the children
under the provisions of the Guardians and Wards Act,
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1890 in the Family Court, Thiruvananthapuram . The
said proceedings are still pending final adjudication.
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6. The Family Court passed an order dated 7 June,
2024, restraining the respondent-father from forcibly
removing the minor children from the custody of the
appellant-mother.
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7. On 22 July, 2024, the respondent-father filed an
application, bearing I.A. No. 02 of 2024, seeking interim
custody/visitation rights of the children in the custody
proceedings instituted by the appellant-mother. The
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Family Court vide order dated 7 October, 2024,
granted visitation rights to the respondent-father,
permitting him to visit and interact with the children
from 10:00 a.m. to 01:30 p.m. on the second Saturday
of every month at the Court premises. The respondent-
father was also permitted to interact with the children
video calls from 07:00 p.m. to 07:20 p.m. (IST) on all
via
Saturdays except second Saturday.
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Hereinafter, being referred to as ‘Family Court’.
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8. On 4 November, 2024, the respondent-father
preferred an Original Petition under Article 227 of the
Constitution of India, bearing OP (FC) No. 682 of 2024,
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assailing the order dated 7 October, 2024 before the
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High Court of Kerala at Ernakulam . The said petition
came to be decided by the Division Bench of the High
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Court vide order dated 11 December, 2024, providing
interim custody of the children to the respondent-father
on the terms indicated below: -
“8. Considering the fact that the father also needs the
custody of the children to have bonding with them till
they attain the age of 18 years, we would not keep the
father away from the interim custody of the children, as
the children require the care and custody of both the
spouses/ parents. Accordingly, we grant fifteen (15)
days of custody to each in a month till the disposal of
the O.P pertaining to permanent custody with the
following conditions:
1. Husband shall file an undertaking
regarding taking of the flat on rent bearing
No.5A SFS, City space, Thiruvananthapuram,
which is fully furnished as well and with
regard to the engagement of a Nanny within
a period of one week from today.
2. He will also make arrangement of the
vehicle for commutation of the children for
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Hereinafter, being referred to as the ‘High Court’.
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drop on and drop off ie., to and from the flat
and the school or another place.
3. He will not take the children away to
Thrissur. He is at liberty to bring his mother
to Thiruvananthapuram without the
permission of this court.
4. He will ensure that the children are taken
care healthy and congenial environment and
there is no lacking in it.
9. We have been informed that every year there are
summer vacations in the school from end of March,
entire April and May and the school reopens on 1st of
June. The similar arrangement will go on during the
said period also.
10. However it is made clear that whenever there is
examination, the custody of the children will be with the
mother only and the custody will be given two weeks
prior to the examination. The mother will give advance
intimation to the husband either through whatsapp
message or through any other mode, regarding the
examination.
11. During the period when the children are in the
custody of the husband/father, the husband/father will
permit 15 minutes of video call, everyday, to the mother.
This arrangement will also be carried on by the
wife/mother when the children will be in the custody of
the mother. In case of any violation, the liberty is
granted to either of the parties to move an application.
Petitioner-husband/father is also directed to undertake
parental counselling.”
(Emphasis Supplied)
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9. The appellant-mother has approached this Court
through this appeal by special leave, assailing the said
order of the High Court, granting periodical interim
custody of both the children to the respondent-father.
10. This Court, while issuing notice vide order dated
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6 January, 2025, had stayed the operation of the
impugned order passed by the High Court to the extent
of interim custody granted to the respondent-father in
respect of the minor son, and restored the arrangement
made by the Family Court in this regard. However, the
arrangement of interim custody granted to the
respondent-father in respect of the daughter aged eight
and a half years was directed to be continued as per the
impugned order.
nd
11. On the previous date of the hearing i.e., 2 April,
2025, the appellant-mother appeared in the Court in-
person whereas, the respondent-father appeared
through video conferencing. At that point of time, the
girl child was in the custody of the respondent-father.
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From 8 /9 April, 2025 onwards, the interim custody
of the child has been restored to the appellant-mother.
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12. After hearing both parties and the learned counsel
appearing on their behalf, we felt that an interaction
with the girl child would be essential to arrive at a just
and fair decision in the matter. Accordingly, the matter
was directed to be taken up in the Committee Room on
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16 April, 2025, at 01:30 p.m. and the parties along
with their daughter were directed to remain present in
person.
13. We interacted ‘in camera’ with the litigating
parents and also had a healthy and satisfying dialogue
with the girl child separately. Heard the arguments
advanced by the learned counsel for the parties.
14. The appellant-mother has raised serious concerns
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. She
submitted that though the respondent-father has taken
a flat bearing No. 5A, SFS, situated in City Space,
Thiruvananthapuram, on rent and travels from
Singapore every 15 days to gain interim custody of the
child, the other conditions of the High Court’s order are
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not being adhered to by him. Her primary and genuine
concern was that the respondent-father has not
engaged a nanny in terms of the High Court’s direction.
15. She further submitted that home cooked food was
not being provided to the girl child in this period, and
that all the meals were procured by ordering from
restaurants/hotels, etc. She further submitted that the
child does not have any company whatsoever other than
the respondent-father and thus, her overall growth and
emotional well-being is being adversely affected owing
to this isolated atmosphere due to which the child may
even suffer permanent emotional scars.
16. E-converso , the respondent-father has pleaded
that he is taking care of the child with all the sincerity
and intent of a caring parent. He travels from Singapore
religiously adhering to the timeline fixed by the High
Court so that he can spend quality time with the child
and develop a stronger bond with her. He urged that his
mother often visits the flat at Thiruvananthapuram to
provide home cooked food to the child and to keep her
company. However, the fact that a nanny has not been
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engaged in terms of the High Court order is not
disputed.
17. He further submitted that he is unequivocally
prepared to abide by any condition so as to restore the
matrimonial ties with the appellant-mother. We refrain
from adverting to this issue as it is for the spouses to
find a mutual resolution to this issue.
18. During the course of interaction with the girl child,
we found her to be very intelligent, expressive and
composed. She gave mature and well-balanced
responses to the queries put by us. She expressed her
love and affection for both her parents. However, she
seemed uncomfortable by the 15 days’ periodic custody
arrangement dividing her time between the father and
the mother. She was candid in her stand that during
the period for which she stayed with the respondent-
father, all the food which was provided to her had been
ordered from restaurants/hotels, etc. Not one meal was
a home cooked one. She also expressed that there is no
one to keep her company except for her father during
this period of 15 days.
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19. 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.
20. Keeping in view the aforesaid principles and
adverting to the facts of the case at hand, we feel 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,
is 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, has
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
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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.
21. Now, coming to the aspect of interim custody of
the eight years old daughter to the respondent-father.
We feel that the intervening circumstances and the
information provided by the child during interaction
fortifies the genuine concern shown by the appellant-
mother that the environment being provided to the child
by the father during the interim custody period of 15
days may not be conducive to her physical and
emotional well-being.
22. It cannot be gainsaid that continued consumption
of food procured from restaurants/hotels would pose a
health hazard, even to a grown-up person, what to talk
of a tender aged child of eight years. The child definitely
requires nutritious home cooked food for her overall
well-being, growth and development. Unfortunately, the
respondent-father is not in a position to provide such
nutrition to the child.
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23. We could even have considered giving an
opportunity to the respondent-father to make suitable
arrangements for providing home cooked food to the
child but the fact that the child gets no company
whatsoever except for that of the father during the
interim custody period of 15 days is an additional factor
which weighs heavily against his claim for the child’s
custody at this stage.
24. It cannot 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.
25. In contrast, the parents of the appellant-mother
are staying with her. She has the advantage of the
facility of working from home. That apart, 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
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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.
26. In this background, we feel that the High Court
clearly erred in granting interim custody of the children
to the respondent-father for a period of 15 days every
month. The arrangement made by the High Court was
not arrived at by weighing the pros and cons of the
situation. 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.
27. Hence, we are of the firm view that the impugned
order passed by the High Court granting interim
custody of the children to the respondent-father for a
period of 15 days every month is unsustainable on the
face of record.
28. However, at the same time, we cannot lose sight of
the fact that the respondent is a doting father who has
shown his keen desire to have an equal and effective
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parenting role in the upbringing of his children. Thus,
depriving him of the custody of the children in entirety
is neither acceptable nor justifiable and may destroy all
chances of family bonding.
29. Hence, in order to provide the respondent-father
fair and reasonable access to the children, we hereby
direct that he shall be entitled to interim custody of the
daughter on alternate Saturdays and Sundays of every
month. On either of these two days, the respondent-
father 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. The
respondent-father may either retain the same flat or
take any other suitably furnished flat in
Thiruvananthapuram town to facilitate the
arrangements for interim custody. The respondent-
father shall make sincere efforts to provide home cooked
meals to the children during this period of interim
custody.
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30. The respondent-father shall be entitled to make
video call/s for 15 minutes to both the children on every
Tuesday and Thursday, the schedule whereof may be
fixed by both the parties, either after consulting with
each other or with the assistance of their respective
lawyers.
31. The Family Court shall expedite the decision of the
Guardianship petition, bearing O.P. (G&W) No. 1185 of
2024, filed by the appellant-mother.
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32. The impugned order dated 11 December, 2024,
passed by the High Court is reversed. The appeal is
allowed accordingly.
33. Pending application(s), if any, shall stand disposed
of.
….……………………J.
(VIKRAM NATH)
….……………………J.
(SANJAY KAROL)
...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
APRIL 29, 2025.
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