Full Judgment Text
2025 INSC 853
Reportable
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
R.P. (C) NOS. 2273-2274/2024
IN
CIVIL APPEAL NOS. 5395-5396 OF 2024
NEETHU B. @ NEETHU BABY
MATHEW …PETITIONER(S)
VERSUS
RAJESH KUMAR …RESPONDENT(S)
J U D G M E N T
VIKRAM NATH,J.
1. The instant review petitions have been preferred
by the original appellant in Civil Appeal No(s).
5395-5396/2024, wherein the present
petitioner’s appeals assailing the common final
judgment and order dated 17.10.2023 in MAT
Appeal No. 815/2022 and MAT Appeal No.
252/2023 passed by the High Court of Kerala
were dismissed by this Court, vide order dated
22.08.2024.
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2025.07.15
18:30:06 IST
Reason:
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2. The brief factual background leading to the
instant petitions is necessary before we delve into
the reason for employing the review jurisdiction
of this Court which is otherwise sparingly
exercised.
3. The marriage was solemnised between the
petitioner-wife and respondent-husband on
04.09.2011 in accordance with Hindu rites and
rituals, and a boy was born out of the wedlock on
07.11.2012. However, differences arose between
the parties soon after, they started living
separately from 22.10.2013 onwards and
eventually decided to dissolve the marriage by
mutual consent. Accordingly, an agreement
based on mutual understanding was executed by
both the parties on 13.09.2014 regarding the
terms of divorce as well as the custody of the
minor child. As per the terms and conditions of
the said agreement, custody of the minor child
was agreed to remain with the petitioner-mother
and the respondent-father was granted visitation
rights on two Saturdays in a month. A joint
divorce petition was filed by the parties which
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was allowed by the Family Court, Attingal, Kerala
on 26.06.2015 in terms of the mutual agreement.
4. Thereafter, the petitioner got remarried with one
Handel Thomas on 18.08.2016. The said Handel
Thomas had two children from his earlier
marriage, and they have attained the age of
majority as of date. Subsequently, one more child
was born to the petitioner and Handel Thomas
out of the wedlock. The petitioner was living with
her husband and the minor children at
Thiruvananthapuram at the relevant time.
5. It is the respondent’s account of events that he
remained unaware about the whereabouts of the
petitioner and his minor son for the period
between 2016-19 and could not find petitioner’s
residential address despite his best efforts. It is
only in October 2019 when the petitioner
contacted the respondent, in order to get his
signatures on certain affidavits to obtain relevant
documents for the minor son’s international
travel, that the respondent became aware about
the factum of petitioner’s remarriage and her
intentions to relocate the minor son to Malaysia.
The relocation of the minor child along with the
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petitioner to Malaysia was intended on account
of it being the place where the petitioner’s second
husband had secured a gainful employment
opportunity in the capacity of a Senior Manager
in a multinational company. As per the
respondent, upon inquiry, he also subsequently
became aware that the child’s religion has been
changed from Hindu to Christian by the
petitioner without any consent or knowledge of
the respondent.
6. Hence, in light of the above developments, the
respondent filed OP(G&W) No. 2353/2020 before
the Family Court, Thiruvananthapuram seeking
permanent custody of the minor child. The said
petition was subsequently transferred to Family
Court, Ottapalam at the instance of the
petitioner, who also preferred a counterclaim to
seek permission to be able to take the minor child
outside India in order to rejoin her husband.
7. The Trial Court, vide judgment dated
31.10.2022, rejected the respondent’s prayer for
the custody of the child, granted permanent
custody and guardianship of the minor to the
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petitioner and extended visitation rights to the
respondent in following terms:
“In the result, original petition is
allowed in part and counter claim is
allowed and a decree is passed as
follows:
1. The prayer of the petitioner for
permanent custody of the minor
child is disallowed.
2. The petitioner is allowed to see
and interact with the minor child
nd th
on all 2 and 4 Saturdays from
2 p.m. to 4 p.m. at the premises of
the court.
3. The respondent/mother is
directed to produce the minor child
before the Chief Ministerial
Officer/in-charge of this court on
nd th
all 2 and 4 Saturdays at 2 p.m.
and to hand over the custody to
the petitioner/father for
interaction upon 4 p.m.
4. The petitioner shall pay an
amount of Rs. 1,000/- (Thousand
rupees only) to the respondent on
all interaction days towards the
travel and other expense of the
child.
5. Counter claim is allowed and the
respondent is appointed as
guardian of the minor child Ryan
Handel (R.S. Sreejesh Nair) and
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permanent custody of the minor
child is given to the
respondent/mother.
6. The respondent is permitted to
take the minor child with her to
abroad during Onam and
Christmas holidays and 30 days
period summer vacation.
7. In case, the respondent takes the
minor child with her to abroad
during the above period, then
before leaving, the respondent
shall submit a statement before
this court as to the details of
country, place of residence with
address, duration of stay, etc. and
shall also file a statement after
arrival before this court as to the
date of arrival.
8. The parties shall bear their
respective costs”
8. Both the parties filed their respective appeals
against the order of the Family Court before the
High Court. The High Court disposed of both the
appeals, vide order dated 17.10.2023, and
granted permanent custody of the child to the
respondent while granting virtual visitation
rights to the mother on every alternative day and
physical visitation rights during one half of the
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school holidays, depending on whenever the
petitioner intends to visit India. This was done
considering the fact that relocation of the child to
Malaysia would not be in the best interest of the
child since he has a stable and well-settled life
over here.
9. Aggrieved by the change in permanent custody,
the petitioner filed SLP (C) Nos. 25528-
25529/2023 before this Court, wherein post
issuance of notice on 24.11.2023, an interim
order dated 29.01.2024 was passed directing the
petitioner-mother to ensure that the child meets
the respondent on every Saturday or Sunday
between 2 p.m. and 4 p.m. in Ottapalam. The
said interim arrangement was continued in the
meanwhile by way of multiple subsequent
orders. Leave was granted in the matter on
22.04.2024 which converted the special leave
petitions to Civil Appeal No(s). 5395-5396 of
2024. However, the appeals were eventually
dismissed by this Court on 22.08.2024, thereby
effectively confirming the permanent custody of
the child in favour of the respondent.
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10. Consequently, the petitioner has preferred the
instant review petitions against the dismissal of
appeals primarily on the ground that the news of
the imminent separation of the minor child (aged
11 years old at that time) from his mother, who
has been his primary guardian since he was an
infant, has caused an immense negative impact
on the mental health of the child. The contention
was supported by the Clinical Psychologist’s
Report dated 03.09.2024 which revealed the
minor child to be indicating anxiety and fears,
with a high risk for separation anxiety disorder.
The detailed contents of the said report shall be
discussed in the latter part of the judgment. It
was also further contended in the said petitions
seeking review that it was after the dismissal of
appeals by this Court when the respondent had
a conversation with the minor child, wherein the
respondent allegedly administered certain
threats regarding separation of the child from his
mother. It was claimed that these alleged
remarks and threats by the respondent have
triggered a detrimental impact on the child’s
psychological health. Therefore, in view of the
new factual developments, this Court’s
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interference was sought by way of these review
petitions.
11. The normal principle is that a judgment
pronounced by this Court is final, and departure
from that principle is justified only when
circumstances of a substantial and compelling
1
character make it necessary to do so. This Court
may also reopen its judgment if a manifest wrong
has been done and it is necessary to pass an
2
order to do full and effective justice. This Court
has been conferred the power to review its
judgments by Article 137 of the Constitution of
India, which is subject to the provisions of any
law made by the Parliament or the rules made
under Article 145 of the Constitution of India.
The scope of a review is usually considered very
limited, and the grounds for maintainability of a
review petition have been succinctly summarized
by this Court in the case of Kamlesh Verma v.
3
Mayawati as follows:-
“20.1. When the review will be
maintainable:
1
Sajjan Singh v State of Rajasthan, AIR 1965 SC 845
2
O.N. Mohindroo v. Distt. Judge, Delhi (1971) 3 SCC 5
3
(2013) 8 SCC 320
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(i) Discovery of new and important
matter or evidence which, after the
exercise of due diligence, was not
within knowledge of the petitioner or
could not be produced by him;
(ii) Mistake or error apparent on the
face of the record;
(iii) Any other sufficient reason.
20.2. When the review will not be
maintainable:
(i) A repetition of old and overruled
argument is not enough to reopen
concluded adjudications.
(ii) Minor mistakes of
inconsequential import.
(iii) Review proceedings cannot be
equated with the original hearing of
the case.
(iv) Review is not maintainable
unless the material error, manifest
on the face of the order, undermines
its soundness or results in
miscarriage of justice.
(v) A review is by no means an appeal
in disguise whereby an erroneous
decision is reheard and corrected but
lies only for patent error.
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(vi) The mere possibility of two views
on the subject cannot be a ground
for review.
(vii) The error apparent on the face of
the record should not be an error
which has to be fished out and
searched.
(viii) The appreciation of evidence on
record is fully within the domain of
the appellate court, it cannot be
permitted to be advanced in the
review petition.
(ix) Review is not maintainable when
the same relief sought at the time of
arguing the main matter had been
negatived.”
12. The principle has also been illuminated upon in
the case of State of West Bengal & Ors. v.
4
Kamal Sengupta & Ors. , wherein it has been
held that this Court, before entertaining review
on the ground of discovery of new matter or
evidence is required to record its satisfaction
about three aspects, which can also be called as
“triple test” i.e., (i) new matter/evidence
discovered is of such nature which could change
the judgment (ii) such new matter/evidence was
4
2008 (8) SCC 612
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not within the knowledge of the party seeking
review (iii) same could not be produced before
court even after due diligence. When any of the
conditions of the test, as laid down above is not
fulfilled, “discovery of new matter/evidence” ipso
facto would not be sufficient ground for the Court
to interfere with the finality of the judgment.
13. As such, it is established that the power of review
jurisdiction is to be used in a restrained manner
and only in circumstances as illustrated above.
Hence, we are cognizant of the heavy burden that
is to be fulfilled by this Court while entertaining
a review petition.
14. Further, since the case at hand is a custody
matter, it becomes imperative for us to lay down
the universally accepted tenets that such matters
are to be dealt sensitively with due consideration
to the emotional, intellectual, physical, financial,
social and cultural needs of a growing child.
Therefore, custody orders are always considered
interlocutory orders and by the nature of such
proceedings, custody orders cannot be made
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5
rigid and final. Rather, the Courts are entitled to
alter and mould the custody orders in view of the
6
best interest of the minor.
15. 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.
Therefore, each case has to be dealt with on the
basis of its unique facts and take into account
any change in circumstances which have an
impact on the quality of a child’s upbringing.
16. In light of the aforesaid legal principles
surrounding review jurisdiction of this Court and
the role of Courts in custody matters, it is a
natural corollary that judicial discretion has to
be properly balanced between the statutory
provisions that advocate for limited exercise of
review powers and the peculiar care that needs
to be extended by the Courts in matters of child
custody. We sincerely believe that undertaking a
far too hyper technical approach in such cases
shall indeed amount to abandoning the doctrine
5
Vikram Vir Vohra v. Shalini Bhalla, 2010 (4) SCC 409
6
Rosy Jacob v. Jacob A Chakramakkal, (1973) 1 SCC 840
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of parens patriae and will cause travesty of
justice.
17. Ms. Liz Mathew, learned senior counsel
appearing for the review petitioner, has
contended that the instant petitions have been
filed solely in the paramount interest of the child
as the judicial verdict in favour of change of
custody has caused a drastic impact on the
mental health of the child which may seriously
affect him during his formative years and can
potentially be irreversible if due regard is not
exhibited in time. The said impact is argued to be
manifestly evident in the psychology expert
reports prepared by the Psychiatry Department
7
of Christian Medical College, Vellore after
psychologically evaluating the child.
18. The initial report of the psychologist dated
03.09.2024, which has been produced as
Annexure P/1 before us, reflected the minor child
to be undergoing anxiety and fears with a high
risk for separation anxiety disorder. In the said
report, for the sake of mental and emotional well-
7
CMC, Vellore
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being of the child, it was further recommended
by the clinical psychologist to avoid separating
the minor from his current family and to conduct
regular sessions to evaluate his mental status
and provide psychotherapy.
19. It was this calamitous effect of the judicial order
on the child’s health that had evoked this Court
to list the instant review petitions for an open
court hearing and further consider if the
circumstances merited this Court’s interference.
We have heard the review petitions as well as the
civil appeals on merits.
20. During the course of arguments, the learned
senior counsel for the petitioner submitted that
in the present case, the child has been in the
exclusive care of the petitioner-mother ever since
the couple separated in October 2013, i.e. when
the child was barely eleven months old. Since
then, the child has only met with the respondent
a handful of times and has never spent even one
night apart from his mother, alone with the
respondent. In such circumstances, taking the
drastic step of changing custody would amount
to upsetting his familiar environment and taking
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a huge leap over the usually accepted norm of
gradual modification in cases of custody. 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.
21. The child’s psychological assessment at CMC,
Vellore continued during the pendency of the
review petitions and four medical reports dated
03.09.2024, 19.10.2024, 07.01.2025, and
29.03.2025 have been produced before us. All
the four reports have indicated the child to be
undergoing significant anxiety, difficulty in
coping with the emotions and separation anxiety
due to the looming threat of custody change in
the child’s head. It has been advised throughout
these reports by experienced psychologists and
psychiatrists at CMC, Vellore, to provide the
child with a stable and emotionally supportive
environment during this time of distress.
Further, it has been strongly cautioned that any
disruption in the existing support systems can
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further deteriorate the emotional well-being of
the child.
22. On the other hand, Ms. Kiran Suri, learned
Senior Counsel for the respondent has contended
that the present case does not fall within the
parameters for exercise of review jurisdiction. It
has been submitted that the clinical psychologist
report cannot be relied upon to decide the mental
well-being of the child as the basis of such report
is the history, symptoms and information
provided by the mother and the stepfather to the
concerned doctor. Further, it has been argued
that the petitioner had intentionally withheld the
child’s whereabouts from the respondent for the
period August 2016 to October 2019. It is for this
reason that the respondent could not make
frequent visits to the minor child and the
petitioner should not be permitted to take
advantage of her own wrong. Lastly, it was
submitted that the respondent is a government
servant, has not remarried and is, therefore, fully
capable of providing a stable and financially
secure environment for the child with undivided
focus on his upbringing.
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23. We have considered the rival contentions and
perused the material on record in great depth.
24. Firstly, it becomes apparent that the child’s
deteriorating mental health as a consequence of
judicial order changing custody is a new
development and a direct consequence of
dismissal of appeals by this Court. Therefore, the
change in the child’s emotional, mental and
overall health, and the psychological assessment
reports on the record certainly constitute new
evidence which was not within the knowledge of
the review petitioner at the time of hearing
appeals, and could not have been produced
before this Court at that time even after due
diligence, on account of it being a post-decision
development. Further, 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. Therefore, in the
wake of new facts as detailed above, the review
petitions at hand are deemed worth entertaining
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under Article 137 of the Constitution of India and
require indulgence of this Court.
25. The minor child in question is presently twelve
years old and at the cusp of adolescence. The
factors defining the best interests of a child are
multiple and range from quality education, a
nurturing family environment, healthy worldly
experiences, provision of basic amenities of life,
meeting of financial requirements, access to a
friendly social system to imparting of spiritual
and cultural learnings. The list is naturally not
an exhaustive one. However, the essential feature
is that a secure, supportive and loving family
forms the bedrock of a healthy childhood
experience and helps one grow into a balanced,
positive and confident adult.
26. In the present case, it remains undisputed that
the child has remained in the exclusive care of
the petitioner since the age of eleven months old.
He understands and accepts her to be his
primary caregiver and support system. In fact, a
perusal of the psychological assessment reports
brings forth that in moments of distress and
heightened emotions, the child seeks refuge in
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his mother’s arms and finds her presence to be
calming. Therefore, there is no denial of the fact
that the petitioner-mother remains a great
source of comfort and safety to the minor child.
27. Additionally, the petitioner got remarried when
the child was not even four years old. The
fortunate repercussion has been that the child,
ever since his preschool days, recognizes his
stepfather to be a part of the family and considers
him to be an essential paternal figure in his life.
It has come on record that the stepfather has also
openly extended a shield of affection and care
towards the minor and has undertaken before
various Courts a commitment to provide an
educationally sound upbringing to the child to
the best of his financial capabilities. The
petitioner and her husband also appear to be
people of means, thereby securing the financial
aspect of upbringing.
28. Further, the second child born to the petitioner
out of her current wedlock is also perceived by
the minor son in question as his sibling and he
shows a great amount of fondness for his
younger brother. Therefore, it becomes quite
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evident that the minor child recognizes his
mother, half-brother and stepfather to be his
immediate family and feels utterly secure in that
setting. There is nothing on record to reflect that
the petitioner’s subsequent marriage or the birth
of the second child has, in any manner, altered
her level of motherly devotion to the minor in
question. The child is also shown to reflect
excellent academic performance at his school
and there is nothing worrisome about his
educational needs as well.
29. Therefore, in our considered opinion, there is
nothing on record to draw an adverse inference
against the current family setup of the child,
merely on account of it being a modern rendition
of familial concept. Rather, it can be seen that
the child’s best interests are being taken care of
well in the current setting.
30. At the same time, the desire of the biological
father of the minor, i.e. the respondent, to
become an active part of the child’s life cannot be
discounted. It is right of both the parents to
contribute to their child’s robust upbringing and
share a bond of care and affection with their
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offspring. It is also in the best interest of the child
to have the presence of both his parents in his
life, which ensures a more holistic development
and formation of sound emotional connections.
31. Even though the petitioner contends that the
respondent has made no serious efforts to be
involved in the child’s life ever since their
separation and has visited the child hardly twelve
times in the last eleven years, the respondent’s
contention remains that such an absence was
caused due to the petitioner pro-actively keeping
the child away from the biological father. We find
it futile to submerge ourselves in the midst of
these contentions as the fact remains that the
child has not had a real chance to form an
emotional bond with his biological father.
32. The High Court’s order of granting permanent
custody of the minor to the father was based on
the belief that the mother’s relocation of the
minor to Malaysia would practically amount to
uprooting his life in Kerala and may cause a
severely negative impact on the child in his
growing years. The same consideration had
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weighed heavily with this Court while dismissing
the appeals.
33. However, the psychological reports on record
make it absolutely clear that the minor’s
normative universe comprises his current family
setting, primarily and especially involving his
mother who has been the child’s sole caregiver
for the past eleven years. In such circumstances,
the change in permanent custody shall also
essentially amount to upending the very core of
the stable and familiar environment in which the
child currently lives and prospers. This
enormous transition cannot be said to be
conducive to the best interest of the child, as it is
reflective from his current mental status. It has
rather been quite damaging to his welfare.
34. The stability and security of the child is an
essential ingredient for the full development of
8
the child’s talent and personality. Even most of
the well grown adults do not perceive sudden and
huge changes in their lives very comfortably and
often exhibit symptoms of distress when
8
Athar Hussain v. Siraj Ahmed, (2010) 2 SCC 654
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confronted with such an imminent change to
their regular life. It would be extremely harsh and
insensitive for the courts of law to expect the
child to accept and flourish in an alien household
where his own biological father is akin to a
stranger to him. We cannot turn a blind eye to
the trauma that is being inflicted on the child in
consequences of the orders of the courts of law
handing custody to the father, who is alleged to
exhibit apathy towards the tender emotional
state of the minor.
35. Therefore, in light of the facts and circumstances
of the case, we firmly believe that permanent
custody of the minor child should remain with
the petitioner-mother. However, the respondent-
father’s intention and efforts to become actively
involved in his child’s life cannot be ignored and
he needs to be given a material opportunity to
develop a connection with his minor son. It shall
be done in the form of granting him visitation
rights, and such visitation rights will provide the
child with a space to start being at ease in his
father’s presence at a comfortable pace, as
opposed to an immediate transition in custody.
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This approach is intended to ensure the welfare
of the child and assist him in forming a child-
parent bond with both his parents.
36. Accordingly, we issue the following directions
governing the custody and visitation rights of
both the parties with regard to the minor child:
a) The minor child is to remain in permanent
custody of the petitioner-mother.
b) The respondent-father is allowed to see and
interact with the child virtually twice a week
for thirty minutes each. The exact time of
such virtual interactions is to be worked out
between the parties after giving due
consideration to the child’s educational
schedule and otherwise. During such virtual
sessions, the petitioner is directed to provide
an interference-free environment to the child
and respondent, and ensure that she does
not meddle in such conversations.
c) The respondent is also permitted to visit the
child in-person for one day every weekend.
The respondent shall be allowed to spend
time with the child between 10 a.m. to 5 p.m.
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every Saturday or Sunday, as may be
convenient to both the parents and the child.
d) For the purpose of physical visitation, the
petitioner is directed to produce the minor
child before the Chief Ministerial Officer/in-
charge of the Family Court, Ottapalam on
every Saturday at 10 a.m., who is to hand
over the custody to the respondent for seven
hours, as mentioned above.
e) The petitioner is strictly restrained from
changing the current place of residence of the
minor to outside India. She shall be allowed
to take the child with her to abroad only
during Onam, Christmas and for 50% of the
period of the total days of the child’s summer
vacations.
f) In case, the petitioner takes the minor child
with her to outside India during the above
period, then at least two weeks prior to the
date of leaving, she is directed to submit a
statement before the Family Court,
Ottapalam as to the details of the country,
place of residence with address, duration of
stay etc., and shall also file a statement after
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arrival before the Family Court, Ottapalam as
to the date of arrival.
g) On occasions of foreign travel, the petitioner
is also directed to share the above-mentioned
details with the respondent via e-mail, at
least ten days prior to the date of said travel.
h) Considering the current vulnerable
emotional health of the minor child, the
petitioner is directed to continue to keep the
child under the care and observation of the
psychologists with routine sessions as it as
an evolving situation. Since the respondent
intends to become an active participant in the
child’s life, he is also directed to partake in
the counselling sessions and apprise himself
of the emotional and mental well-being of the
child.
i) The parties are mandatorily directed to seek
a re-assessment of the child’s health at CMC,
Vellore, within three months from this order,
st
i.e. before 31 October 2025.
j) The respondent is not being granted any
over-night stay permission or longer
visitation rights to the child at this point in
time. However, this is subject to change,
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provided there are positive developments in
interaction between the respondent and the
minor-son. The said positive changes should
be reflected by the child’s behaviour and
comfort level as well as the psychological
examination reports. If such favourable
changes are reported, the respondent shall
be at liberty to prefer an application before
this Court seeking modification of the present
order and more flexible visitation rights.
37. Before parting with the judgment, we find it
relevant to remind both the parents of their
primary responsibility towards child’s nurturing,
which can be achieved by effective
communication and smooth execution of the
above arrangement, while exhibiting mutual
respect. The parties are advised not to let their
bitter past experience impede the child’s well-
being, especially given the sensitive emotional
state of the tender child. The petitioner is advised
to encourage the child to accept and welcome
both the parents in his life for a well-rounded
development.
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38. The petitioner has also contended that the
respondent has allegedly administered threats
upon the minor child regarding taking him away
permanently from his mother and that, such
threats have triggered the deteriorating mental
health of the child. While we refrain ourselves
from commenting on the alleged threats because
their factum has been strongly opposed by the
respondent and it remains to be a matter of
evidence, we strongly advise and caution the
respondent-father against making any kind of
insensitive or crude remarks to the child.
Further, the respondent cannot immediately
expect the child to develop a parental bond with
him abruptly after such a long absence. A father-
son relation can only be fostered patiently over
the course of years, marked by his continued
presence and responsibility-bearing attitude,
and nurtured with boundless love, care and
empathy.
39. Lastly, I.A. No. 54350 of 2025 was filed by the
petitioner seeking directions to the Family Court
to avoid calling the minor child to Court premises
in the execution of custody proceedings pending
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before the Family Court. Even though the said
execution proceedings shall be rendered
infructuous in light of the instant judgment, if
there arises any subsequent proceeding before
the Family Court, we recommend the Court to
afford due care while ordering the physical
presence of the child in Court premises. This is
considering the fact that the child has already
faced colossal emotional impact in the courts of
law and might not respond well in such
circumstances. Therefore, the physical presence
of the child is advised to be avoided unless
absolutely necessary.
40. Accordingly, the instant review petitions are
allowed and this Court’s order dated 22.08.2024
in Civil Appeal Nos. 5395-5396 of 2024 is
recalled and the civil appeals are restored to their
original numbers. Further, the civil appeals are
allowed. Subsequently, the High Court’s order
dated 17.10.2023 stands set aside, whereas the
conditions imposed by the Trial Court, vide order
dated 31.10.2022, are re-affirmed apart from the
visitation arrangement which stand modified as
per the instant judgment. It is directed that the
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custody of the child shall remain with the
petitioner while the respondent shall have
visitation rights in terms of the above
stipulations.
41. Interlocutory application(s), if any, shall stand
disposed of.
………….........................J.
[VIKRAM NATH]
…………..........................J.
[PRASANNA B. VARALE]
NEW DELHI
JULY 15, 2025.
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Reportable
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
R.P. (C) NOS. 2273-2274/2024
IN
CIVIL APPEAL NOS. 5395-5396 OF 2024
NEETHU B. @ NEETHU BABY
MATHEW …PETITIONER(S)
VERSUS
RAJESH KUMAR …RESPONDENT(S)
J U D G M E N T
VIKRAM NATH,J.
1. The instant review petitions have been preferred
by the original appellant in Civil Appeal No(s).
5395-5396/2024, wherein the present
petitioner’s appeals assailing the common final
judgment and order dated 17.10.2023 in MAT
Appeal No. 815/2022 and MAT Appeal No.
252/2023 passed by the High Court of Kerala
were dismissed by this Court, vide order dated
22.08.2024.
Signature Not Verified
Digitally signed by
NEETU KHAJURIA
Date: 2025.07.15
18:30:06 IST
Reason:
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2. The brief factual background leading to the
instant petitions is necessary before we delve into
the reason for employing the review jurisdiction
of this Court which is otherwise sparingly
exercised.
3. The marriage was solemnised between the
petitioner-wife and respondent-husband on
04.09.2011 in accordance with Hindu rites and
rituals, and a boy was born out of the wedlock on
07.11.2012. However, differences arose between
the parties soon after, they started living
separately from 22.10.2013 onwards and
eventually decided to dissolve the marriage by
mutual consent. Accordingly, an agreement
based on mutual understanding was executed by
both the parties on 13.09.2014 regarding the
terms of divorce as well as the custody of the
minor child. As per the terms and conditions of
the said agreement, custody of the minor child
was agreed to remain with the petitioner-mother
and the respondent-father was granted visitation
rights on two Saturdays in a month. A joint
divorce petition was filed by the parties which
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was allowed by the Family Court, Attingal, Kerala
on 26.06.2015 in terms of the mutual agreement.
4. Thereafter, the petitioner got remarried with one
Handel Thomas on 18.08.2016. The said Handel
Thomas had two children from his earlier
marriage, and they have attained the age of
majority as of date. Subsequently, one more child
was born to the petitioner and Handel Thomas
out of the wedlock. The petitioner was living with
her husband and the minor children at
Thiruvananthapuram at the relevant time.
5. It is the respondent’s account of events that he
remained unaware about the whereabouts of the
petitioner and his minor son for the period
between 2016-19 and could not find petitioner’s
residential address despite his best efforts. It is
only in October 2019 when the petitioner
contacted the respondent, in order to get his
signatures on certain affidavits to obtain relevant
documents for the minor son’s international
travel, that the respondent became aware about
the factum of petitioner’s remarriage and her
intentions to relocate the minor son to Malaysia.
The relocation of the minor child along with the
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petitioner to Malaysia was intended on account
of it being the place where the petitioner’s second
husband had secured a gainful employment
opportunity in the capacity of a Senior Manager
in a multinational company. As per the
respondent, upon inquiry, he also subsequently
became aware that the child’s religion has been
changed from Hindu to Christian by the
petitioner without any consent or knowledge of
the respondent.
6. Hence, in light of the above developments, the
respondent filed OP(G&W) No. 2353/2020 before
the Family Court, Thiruvananthapuram seeking
permanent custody of the minor child. The said
petition was subsequently transferred to Family
Court, Ottapalam at the instance of the
petitioner, who also preferred a counterclaim to
seek permission to be able to take the minor child
outside India in order to rejoin her husband.
7. The Trial Court, vide judgment dated
31.10.2022, rejected the respondent’s prayer for
the custody of the child, granted permanent
custody and guardianship of the minor to the
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petitioner and extended visitation rights to the
respondent in following terms:
“In the result, original petition is
allowed in part and counter claim is
allowed and a decree is passed as
follows:
1. The prayer of the petitioner for
permanent custody of the minor
child is disallowed.
2. The petitioner is allowed to see
and interact with the minor child
nd th
on all 2 and 4 Saturdays from
2 p.m. to 4 p.m. at the premises of
the court.
3. The respondent/mother is
directed to produce the minor child
before the Chief Ministerial
Officer/in-charge of this court on
nd th
all 2 and 4 Saturdays at 2 p.m.
and to hand over the custody to
the petitioner/father for
interaction upon 4 p.m.
4. The petitioner shall pay an
amount of Rs. 1,000/- (Thousand
rupees only) to the respondent on
all interaction days towards the
travel and other expense of the
child.
5. Counter claim is allowed and the
respondent is appointed as
guardian of the minor child Ryan
Handel (R.S. Sreejesh Nair) and
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permanent custody of the minor
child is given to the
respondent/mother.
6. The respondent is permitted to
take the minor child with her to
abroad during Onam and
Christmas holidays and 30 days
period summer vacation.
7. In case, the respondent takes the
minor child with her to abroad
during the above period, then
before leaving, the respondent
shall submit a statement before
this court as to the details of
country, place of residence with
address, duration of stay, etc. and
shall also file a statement after
arrival before this court as to the
date of arrival.
8. The parties shall bear their
respective costs”
8. Both the parties filed their respective appeals
against the order of the Family Court before the
High Court. The High Court disposed of both the
appeals, vide order dated 17.10.2023, and
granted permanent custody of the child to the
respondent while granting virtual visitation
rights to the mother on every alternative day and
physical visitation rights during one half of the
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school holidays, depending on whenever the
petitioner intends to visit India. This was done
considering the fact that relocation of the child to
Malaysia would not be in the best interest of the
child since he has a stable and well-settled life
over here.
9. Aggrieved by the change in permanent custody,
the petitioner filed SLP (C) Nos. 25528-
25529/2023 before this Court, wherein post
issuance of notice on 24.11.2023, an interim
order dated 29.01.2024 was passed directing the
petitioner-mother to ensure that the child meets
the respondent on every Saturday or Sunday
between 2 p.m. and 4 p.m. in Ottapalam. The
said interim arrangement was continued in the
meanwhile by way of multiple subsequent
orders. Leave was granted in the matter on
22.04.2024 which converted the special leave
petitions to Civil Appeal No(s). 5395-5396 of
2024. However, the appeals were eventually
dismissed by this Court on 22.08.2024, thereby
effectively confirming the permanent custody of
the child in favour of the respondent.
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10. Consequently, the petitioner has preferred the
instant review petitions against the dismissal of
appeals primarily on the ground that the news of
the imminent separation of the minor child (aged
11 years old at that time) from his mother, who
has been his primary guardian since he was an
infant, has caused an immense negative impact
on the mental health of the child. The contention
was supported by the Clinical Psychologist’s
Report dated 03.09.2024 which revealed the
minor child to be indicating anxiety and fears,
with a high risk for separation anxiety disorder.
The detailed contents of the said report shall be
discussed in the latter part of the judgment. It
was also further contended in the said petitions
seeking review that it was after the dismissal of
appeals by this Court when the respondent had
a conversation with the minor child, wherein the
respondent allegedly administered certain
threats regarding separation of the child from his
mother. It was claimed that these alleged
remarks and threats by the respondent have
triggered a detrimental impact on the child’s
psychological health. Therefore, in view of the
new factual developments, this Court’s
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interference was sought by way of these review
petitions.
11. The normal principle is that a judgment
pronounced by this Court is final, and departure
from that principle is justified only when
circumstances of a substantial and compelling
1
character make it necessary to do so. This Court
may also reopen its judgment if a manifest wrong
has been done and it is necessary to pass an
2
order to do full and effective justice. This Court
has been conferred the power to review its
judgments by Article 137 of the Constitution of
India, which is subject to the provisions of any
law made by the Parliament or the rules made
under Article 145 of the Constitution of India.
The scope of a review is usually considered very
limited, and the grounds for maintainability of a
review petition have been succinctly summarized
by this Court in the case of Kamlesh Verma v.
3
Mayawati as follows:-
“20.1. When the review will be
maintainable:
1
Sajjan Singh v State of Rajasthan, AIR 1965 SC 845
2
O.N. Mohindroo v. Distt. Judge, Delhi (1971) 3 SCC 5
3
(2013) 8 SCC 320
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(i) Discovery of new and important
matter or evidence which, after the
exercise of due diligence, was not
within knowledge of the petitioner or
could not be produced by him;
(ii) Mistake or error apparent on the
face of the record;
(iii) Any other sufficient reason.
20.2. When the review will not be
maintainable:
(i) A repetition of old and overruled
argument is not enough to reopen
concluded adjudications.
(ii) Minor mistakes of
inconsequential import.
(iii) Review proceedings cannot be
equated with the original hearing of
the case.
(iv) Review is not maintainable
unless the material error, manifest
on the face of the order, undermines
its soundness or results in
miscarriage of justice.
(v) A review is by no means an appeal
in disguise whereby an erroneous
decision is reheard and corrected but
lies only for patent error.
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(vi) The mere possibility of two views
on the subject cannot be a ground
for review.
(vii) The error apparent on the face of
the record should not be an error
which has to be fished out and
searched.
(viii) The appreciation of evidence on
record is fully within the domain of
the appellate court, it cannot be
permitted to be advanced in the
review petition.
(ix) Review is not maintainable when
the same relief sought at the time of
arguing the main matter had been
negatived.”
12. The principle has also been illuminated upon in
the case of State of West Bengal & Ors. v.
4
Kamal Sengupta & Ors. , wherein it has been
held that this Court, before entertaining review
on the ground of discovery of new matter or
evidence is required to record its satisfaction
about three aspects, which can also be called as
“triple test” i.e., (i) new matter/evidence
discovered is of such nature which could change
the judgment (ii) such new matter/evidence was
4
2008 (8) SCC 612
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not within the knowledge of the party seeking
review (iii) same could not be produced before
court even after due diligence. When any of the
conditions of the test, as laid down above is not
fulfilled, “discovery of new matter/evidence” ipso
facto would not be sufficient ground for the Court
to interfere with the finality of the judgment.
13. As such, it is established that the power of review
jurisdiction is to be used in a restrained manner
and only in circumstances as illustrated above.
Hence, we are cognizant of the heavy burden that
is to be fulfilled by this Court while entertaining
a review petition.
14. Further, since the case at hand is a custody
matter, it becomes imperative for us to lay down
the universally accepted tenets that such matters
are to be dealt sensitively with due consideration
to the emotional, intellectual, physical, financial,
social and cultural needs of a growing child.
Therefore, custody orders are always considered
interlocutory orders and by the nature of such
proceedings, custody orders cannot be made
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5
rigid and final. Rather, the Courts are entitled to
alter and mould the custody orders in view of the
6
best interest of the minor.
15. 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.
Therefore, each case has to be dealt with on the
basis of its unique facts and take into account
any change in circumstances which have an
impact on the quality of a child’s upbringing.
16. In light of the aforesaid legal principles
surrounding review jurisdiction of this Court and
the role of Courts in custody matters, it is a
natural corollary that judicial discretion has to
be properly balanced between the statutory
provisions that advocate for limited exercise of
review powers and the peculiar care that needs
to be extended by the Courts in matters of child
custody. We sincerely believe that undertaking a
far too hyper technical approach in such cases
shall indeed amount to abandoning the doctrine
5
Vikram Vir Vohra v. Shalini Bhalla, 2010 (4) SCC 409
6
Rosy Jacob v. Jacob A Chakramakkal, (1973) 1 SCC 840
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of parens patriae and will cause travesty of
justice.
17. Ms. Liz Mathew, learned senior counsel
appearing for the review petitioner, has
contended that the instant petitions have been
filed solely in the paramount interest of the child
as the judicial verdict in favour of change of
custody has caused a drastic impact on the
mental health of the child which may seriously
affect him during his formative years and can
potentially be irreversible if due regard is not
exhibited in time. The said impact is argued to be
manifestly evident in the psychology expert
reports prepared by the Psychiatry Department
7
of Christian Medical College, Vellore after
psychologically evaluating the child.
18. The initial report of the psychologist dated
03.09.2024, which has been produced as
Annexure P/1 before us, reflected the minor child
to be undergoing anxiety and fears with a high
risk for separation anxiety disorder. In the said
report, for the sake of mental and emotional well-
7
CMC, Vellore
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being of the child, it was further recommended
by the clinical psychologist to avoid separating
the minor from his current family and to conduct
regular sessions to evaluate his mental status
and provide psychotherapy.
19. It was this calamitous effect of the judicial order
on the child’s health that had evoked this Court
to list the instant review petitions for an open
court hearing and further consider if the
circumstances merited this Court’s interference.
We have heard the review petitions as well as the
civil appeals on merits.
20. During the course of arguments, the learned
senior counsel for the petitioner submitted that
in the present case, the child has been in the
exclusive care of the petitioner-mother ever since
the couple separated in October 2013, i.e. when
the child was barely eleven months old. Since
then, the child has only met with the respondent
a handful of times and has never spent even one
night apart from his mother, alone with the
respondent. In such circumstances, taking the
drastic step of changing custody would amount
to upsetting his familiar environment and taking
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a huge leap over the usually accepted norm of
gradual modification in cases of custody. 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.
21. The child’s psychological assessment at CMC,
Vellore continued during the pendency of the
review petitions and four medical reports dated
03.09.2024, 19.10.2024, 07.01.2025, and
29.03.2025 have been produced before us. All
the four reports have indicated the child to be
undergoing significant anxiety, difficulty in
coping with the emotions and separation anxiety
due to the looming threat of custody change in
the child’s head. It has been advised throughout
these reports by experienced psychologists and
psychiatrists at CMC, Vellore, to provide the
child with a stable and emotionally supportive
environment during this time of distress.
Further, it has been strongly cautioned that any
disruption in the existing support systems can
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further deteriorate the emotional well-being of
the child.
22. On the other hand, Ms. Kiran Suri, learned
Senior Counsel for the respondent has contended
that the present case does not fall within the
parameters for exercise of review jurisdiction. It
has been submitted that the clinical psychologist
report cannot be relied upon to decide the mental
well-being of the child as the basis of such report
is the history, symptoms and information
provided by the mother and the stepfather to the
concerned doctor. Further, it has been argued
that the petitioner had intentionally withheld the
child’s whereabouts from the respondent for the
period August 2016 to October 2019. It is for this
reason that the respondent could not make
frequent visits to the minor child and the
petitioner should not be permitted to take
advantage of her own wrong. Lastly, it was
submitted that the respondent is a government
servant, has not remarried and is, therefore, fully
capable of providing a stable and financially
secure environment for the child with undivided
focus on his upbringing.
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23. We have considered the rival contentions and
perused the material on record in great depth.
24. Firstly, it becomes apparent that the child’s
deteriorating mental health as a consequence of
judicial order changing custody is a new
development and a direct consequence of
dismissal of appeals by this Court. Therefore, the
change in the child’s emotional, mental and
overall health, and the psychological assessment
reports on the record certainly constitute new
evidence which was not within the knowledge of
the review petitioner at the time of hearing
appeals, and could not have been produced
before this Court at that time even after due
diligence, on account of it being a post-decision
development. Further, 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. Therefore, in the
wake of new facts as detailed above, the review
petitions at hand are deemed worth entertaining
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under Article 137 of the Constitution of India and
require indulgence of this Court.
25. The minor child in question is presently twelve
years old and at the cusp of adolescence. The
factors defining the best interests of a child are
multiple and range from quality education, a
nurturing family environment, healthy worldly
experiences, provision of basic amenities of life,
meeting of financial requirements, access to a
friendly social system to imparting of spiritual
and cultural learnings. The list is naturally not
an exhaustive one. However, the essential feature
is that a secure, supportive and loving family
forms the bedrock of a healthy childhood
experience and helps one grow into a balanced,
positive and confident adult.
26. In the present case, it remains undisputed that
the child has remained in the exclusive care of
the petitioner since the age of eleven months old.
He understands and accepts her to be his
primary caregiver and support system. In fact, a
perusal of the psychological assessment reports
brings forth that in moments of distress and
heightened emotions, the child seeks refuge in
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his mother’s arms and finds her presence to be
calming. Therefore, there is no denial of the fact
that the petitioner-mother remains a great
source of comfort and safety to the minor child.
27. Additionally, the petitioner got remarried when
the child was not even four years old. The
fortunate repercussion has been that the child,
ever since his preschool days, recognizes his
stepfather to be a part of the family and considers
him to be an essential paternal figure in his life.
It has come on record that the stepfather has also
openly extended a shield of affection and care
towards the minor and has undertaken before
various Courts a commitment to provide an
educationally sound upbringing to the child to
the best of his financial capabilities. The
petitioner and her husband also appear to be
people of means, thereby securing the financial
aspect of upbringing.
28. Further, the second child born to the petitioner
out of her current wedlock is also perceived by
the minor son in question as his sibling and he
shows a great amount of fondness for his
younger brother. Therefore, it becomes quite
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evident that the minor child recognizes his
mother, half-brother and stepfather to be his
immediate family and feels utterly secure in that
setting. There is nothing on record to reflect that
the petitioner’s subsequent marriage or the birth
of the second child has, in any manner, altered
her level of motherly devotion to the minor in
question. The child is also shown to reflect
excellent academic performance at his school
and there is nothing worrisome about his
educational needs as well.
29. Therefore, in our considered opinion, there is
nothing on record to draw an adverse inference
against the current family setup of the child,
merely on account of it being a modern rendition
of familial concept. Rather, it can be seen that
the child’s best interests are being taken care of
well in the current setting.
30. At the same time, the desire of the biological
father of the minor, i.e. the respondent, to
become an active part of the child’s life cannot be
discounted. It is right of both the parents to
contribute to their child’s robust upbringing and
share a bond of care and affection with their
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offspring. It is also in the best interest of the child
to have the presence of both his parents in his
life, which ensures a more holistic development
and formation of sound emotional connections.
31. Even though the petitioner contends that the
respondent has made no serious efforts to be
involved in the child’s life ever since their
separation and has visited the child hardly twelve
times in the last eleven years, the respondent’s
contention remains that such an absence was
caused due to the petitioner pro-actively keeping
the child away from the biological father. We find
it futile to submerge ourselves in the midst of
these contentions as the fact remains that the
child has not had a real chance to form an
emotional bond with his biological father.
32. The High Court’s order of granting permanent
custody of the minor to the father was based on
the belief that the mother’s relocation of the
minor to Malaysia would practically amount to
uprooting his life in Kerala and may cause a
severely negative impact on the child in his
growing years. The same consideration had
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weighed heavily with this Court while dismissing
the appeals.
33. However, the psychological reports on record
make it absolutely clear that the minor’s
normative universe comprises his current family
setting, primarily and especially involving his
mother who has been the child’s sole caregiver
for the past eleven years. In such circumstances,
the change in permanent custody shall also
essentially amount to upending the very core of
the stable and familiar environment in which the
child currently lives and prospers. This
enormous transition cannot be said to be
conducive to the best interest of the child, as it is
reflective from his current mental status. It has
rather been quite damaging to his welfare.
34. The stability and security of the child is an
essential ingredient for the full development of
8
the child’s talent and personality. Even most of
the well grown adults do not perceive sudden and
huge changes in their lives very comfortably and
often exhibit symptoms of distress when
8
Athar Hussain v. Siraj Ahmed, (2010) 2 SCC 654
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confronted with such an imminent change to
their regular life. It would be extremely harsh and
insensitive for the courts of law to expect the
child to accept and flourish in an alien household
where his own biological father is akin to a
stranger to him. We cannot turn a blind eye to
the trauma that is being inflicted on the child in
consequences of the orders of the courts of law
handing custody to the father, who is alleged to
exhibit apathy towards the tender emotional
state of the minor.
35. Therefore, in light of the facts and circumstances
of the case, we firmly believe that permanent
custody of the minor child should remain with
the petitioner-mother. However, the respondent-
father’s intention and efforts to become actively
involved in his child’s life cannot be ignored and
he needs to be given a material opportunity to
develop a connection with his minor son. It shall
be done in the form of granting him visitation
rights, and such visitation rights will provide the
child with a space to start being at ease in his
father’s presence at a comfortable pace, as
opposed to an immediate transition in custody.
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This approach is intended to ensure the welfare
of the child and assist him in forming a child-
parent bond with both his parents.
36. Accordingly, we issue the following directions
governing the custody and visitation rights of
both the parties with regard to the minor child:
a) The minor child is to remain in permanent
custody of the petitioner-mother.
b) The respondent-father is allowed to see and
interact with the child virtually twice a week
for thirty minutes each. The exact time of
such virtual interactions is to be worked out
between the parties after giving due
consideration to the child’s educational
schedule and otherwise. During such virtual
sessions, the petitioner is directed to provide
an interference-free environment to the child
and respondent, and ensure that she does
not meddle in such conversations.
c) The respondent is also permitted to visit the
child in-person for one day every weekend.
The respondent shall be allowed to spend
time with the child between 10 a.m. to 5 p.m.
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every Saturday or Sunday, as may be
convenient to both the parents and the child.
d) For the purpose of physical visitation, the
petitioner is directed to produce the minor
child before the Chief Ministerial Officer/in-
charge of the Family Court, Ottapalam on
every Saturday at 10 a.m., who is to hand
over the custody to the respondent for seven
hours, as mentioned above.
e) The petitioner is strictly restrained from
changing the current place of residence of the
minor to outside India. She shall be allowed
to take the child with her to abroad only
during Onam, Christmas and for 50% of the
period of the total days of the child’s summer
vacations.
f) In case, the petitioner takes the minor child
with her to outside India during the above
period, then at least two weeks prior to the
date of leaving, she is directed to submit a
statement before the Family Court,
Ottapalam as to the details of the country,
place of residence with address, duration of
stay etc., and shall also file a statement after
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arrival before the Family Court, Ottapalam as
to the date of arrival.
g) On occasions of foreign travel, the petitioner
is also directed to share the above-mentioned
details with the respondent via e-mail, at
least ten days prior to the date of said travel.
h) Considering the current vulnerable
emotional health of the minor child, the
petitioner is directed to continue to keep the
child under the care and observation of the
psychologists with routine sessions as it as
an evolving situation. Since the respondent
intends to become an active participant in the
child’s life, he is also directed to partake in
the counselling sessions and apprise himself
of the emotional and mental well-being of the
child.
i) The parties are mandatorily directed to seek
a re-assessment of the child’s health at CMC,
Vellore, within three months from this order,
st
i.e. before 31 October 2025.
j) The respondent is not being granted any
over-night stay permission or longer
visitation rights to the child at this point in
time. However, this is subject to change,
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provided there are positive developments in
interaction between the respondent and the
minor-son. The said positive changes should
be reflected by the child’s behaviour and
comfort level as well as the psychological
examination reports. If such favourable
changes are reported, the respondent shall
be at liberty to prefer an application before
this Court seeking modification of the present
order and more flexible visitation rights.
37. Before parting with the judgment, we find it
relevant to remind both the parents of their
primary responsibility towards child’s nurturing,
which can be achieved by effective
communication and smooth execution of the
above arrangement, while exhibiting mutual
respect. The parties are advised not to let their
bitter past experience impede the child’s well-
being, especially given the sensitive emotional
state of the tender child. The petitioner is advised
to encourage the child to accept and welcome
both the parents in his life for a well-rounded
development.
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38. The petitioner has also contended that the
respondent has allegedly administered threats
upon the minor child regarding taking him away
permanently from his mother and that, such
threats have triggered the deteriorating mental
health of the child. While we refrain ourselves
from commenting on the alleged threats because
their factum has been strongly opposed by the
respondent and it remains to be a matter of
evidence, we strongly advise and caution the
respondent-father against making any kind of
insensitive or crude remarks to the child.
Further, the respondent cannot immediately
expect the child to develop a parental bond with
him abruptly after such a long absence. A father-
son relation can only be fostered patiently over
the course of years, marked by his continued
presence and responsibility-bearing attitude,
and nurtured with boundless love, care and
empathy.
39. Lastly, I.A. No. 54350 of 2025 was filed by the
petitioner seeking directions to the Family Court
to avoid calling the minor child to Court premises
in the execution of custody proceedings pending
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before the Family Court. Even though the said
execution proceedings shall be rendered
infructuous in light of the instant judgment, if
there arises any subsequent proceeding before
the Family Court, we recommend the Court to
afford due care while ordering the physical
presence of the child in Court premises. This is
considering the fact that the child has already
faced colossal emotional impact in the courts of
law and might not respond well in such
circumstances. Therefore, the physical presence
of the child is advised to be avoided unless
absolutely necessary.
40. Accordingly, the instant review petitions are
allowed and this Court’s order dated 22.08.2024
in Civil Appeal Nos. 5395-5396 of 2024 is
recalled and the civil appeals are restored to their
original numbers. Further, the civil appeals are
allowed. Subsequently, the High Court’s order
dated 17.10.2023 stands set aside, whereas the
conditions imposed by the Trial Court, vide order
dated 31.10.2022, are re-affirmed apart from the
visitation arrangement which stand modified as
per the instant judgment. It is directed that the
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custody of the child shall remain with the
petitioner while the respondent shall have
visitation rights in terms of the above
stipulations.
41. Interlocutory application(s), if any, shall stand
disposed of.
………….........................J.
[VIKRAM NATH]
…………..........................J.
[PRASANNA B. VARALE]
NEW DELHI
JULY 15, 2025.
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