It is definitely most pertinent to note that while ruling on a very significant legal point pertaining to the child custody orders being modified, the Kerala High Court has in a most learned, laudable, landmark, logical and latest judgment titled Thomas @ Manoj EJ vs Indu S in OP (FC) No. 674 of 2023 against the order dated 02.11.2023 in I.A No. 2 of 2022 in OP No.197 of 2018 of Family Court, Thalassery and cited in Neutral Citation No.: 2024:KER:30685 that was pronounced just recently on April 11, 2024 made it clear in no uncertain terms that Courts are authorized to modify child custody orders depending on change in circumstances and taking into account the welfare of the child. It must be noted that a Division Bench comprising of Hon’ble Mr Justice Raja Vijayaraghavan V and Hon’ble Mr Justice PM Manoj minced just no words to make it pretty clear that while considering matters of child custody, importance must be given to the child’s welfare rather than strictly adhering to parental rights or past judicial decisions. The Court also underscored that when circumstances relating to the child’s well-being is in question, custodial orders can be subjected to modification.
We need to note that the Kerala High Court also held that each case has to be decided on its own facts while considering the moral and ethical welfare of the child and the doctrine of res judicata would not always apply to child custody matters. It also must be noted here that the Kerala High Court thus very rightly upheld the Family Court’s decision and dismissed the father’s plea. No denying it.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Raja Vijayaraghavan V for a Division Bench of the Kerala High Court comprising of himself and Hon’ble Mr Justice PM Manoj sets the ball rolling by first and foremost putting forth in para 1 that, “This petition is filed challenging Ext.P23 order dated 2.11.2023 in O.P.(G & W) No.197/2018 on the files of the Family Court, Thalassery. The aforesaid petition has been filed by the respondent herein seeking to modify the order of the custody of the child in O.P. No.197/2018 on the files of the said court. The above order was passed consequent to a compromise entered between the parties, requiring the mother to hand over the 3-year-old minor son of the petitioner to him on two Sundays in a month. After a period of one year from the date of order, the mother is to give custody of the child to the father on all Saturdays and Sundays.”
To put things in perspective, the Division Bench envisages in para 2 of this robust judgment that, “The petitioner, after entering an appearance, challenged the very maintainability of the application. According to him, seeking compliance with the directions issued based on a compromise decree dated 3.7.2018, the petitioner has been moving heaven and earth. All the attempts of the petitioner to seek execution of the order were scuttled by the mother by adopting one mode or the other. To ensure compliance, the mother was arrested once and was released on self-bond. He also highlighted the sequence of events from the commencement of proceedings to substantiate his contention that the attempt of the mother is to prevent the petitioner from having custody of the child as ordered under the compromise decree. It is stated that it is with a view to avoid the proceedings initiated against the respondent-mother for violation of the compromise decree that this application has been filed to protract the matter.”
As it turned out, the Division Bench then enunciates in para 3 of this remarkable judgment that, “The respondent countered the contentions and pointed out that the child is suffering from various ailments including Attention Deficit/Hyperactivity Disorder. The child is undergoing behavioral therapy in order to ascertain the reasons for his mood swings. She has also produced certain medical records from various hospitals to substantiate her contention.”
As we see, the Division Bench then lays bare in para 4 of this pragmatic judgment that, “The learned Family Court considered the objections raised by the petitioner and was of the view that in a petition for custody of children, the order passed initially cannot be said to be final. It was also held that it was open to any of the parties to the proceeding to approach the court and seek modification of the order if there is any change of circumstances. As far as the genuineness of the allegations is concerned, the same can be determined only after taking evidence. Holding so, it was held that the application seeking modification was perfectly maintainable.”
Do note, the Division Bench notes in para 7 of this progressive judgment that, “We have carefully considered the submissions advanced. This Court, by order dated 21.3.2024, directed the parties to be present in person along with the minor child. In terms of the directions issued, the parties have appeared in person. After interacting with the parties, we passed the following order, the relevant portion of which reads as under:
“4. During our interaction with the parties, we observed that the child displayed signs of distress and he was clinging on to the mother. He appeared to be having anxiety issues and was sobbing intermittently. Despite being 9 years old, the child appears to be troubled and kept on insisting that he does not want to be with his father.
5. The respondent mother asserts that the child suffers from Attention Deficit/Hyperactivity Disorder (ADHD) along with anxiety issues, compounded by additional medical concerns.
6. While the petitioner acknowledges the child’s behavioral challenges, he contends that the child requires comprehensive treatment from qualified medical professionals, which he asserts is currently lacking. Fundamentally, the contention is that the Family Court should have enforced its initial order prior to entertaining the respondent wife’s application.
7. Having observed the child, we are persuaded to prima facie observe that an abrupt transfer of custody to the father at this stage would be profoundly distressing and traumatic for the child. Consequently, we have requested the respective counsels to ascertain their willingness to engage the child with specialists such as a Developmental Pediatrician/Pediatric Neurologist/ Child Psychologist, with the aim of enabling the child to grow up with peace, happiness and well being.
8. We have no doubt in our mind that the protracted custody dispute and recurrent court appearances to enforce previous orders have evidently taken a toll on the child, who appears deeply traumatized. Unless both the father and mother, embroiled in conflict, conscientiously endeavor to cease their disputes until the child stabilizes, there exists a risk of inflicting irreparable harm upon the child’s psyche.
9. The learned counsel appearing for both sides submitted that they shall get inputs from their parties and inform their decision on the next posting date.
10. In that view of the matter, as an interim measure, Ext.P23 order passed by the Family Court shall be kept in abeyance for a period of ten days.””
Simply put, the Division Bench observes in para 8 of this noteworthy judgment that, “We have taken up the matter today. The learned counsel appearing for the respondent submitted that the child is being seen by the doctors attached to the Kannur Medical College and the Mattannur Medical Mission Hospital and treatment is going on. We have also perused the medical records that were handed over.”
Briefly stated, it is worth noting that the Division Bench notes in para 9 of this refreshing judgment that, “Having considered the submissions advanced and the peculiar facts of the instant case, we are of the view that the stand taken by the learned Family Court while rejecting the preliminary objection as regards the maintainability of the application filed by the mother seeking modification is not liable to be interfered with. In Dr. Ashish Ranjan v. Anupama Tandon and Another [(2010) 14 SCC 274], the Apex Court had occasion to observe that the mutual settlement reached between the parties cannot come in the way of the well-established principles in respect of the custody of the child and therefore, a subsequent application for custody of a minor cannot be thrown out at the threshold as being not maintainable. It was also held that the doctrine of res judicata is not applicable in matters of child custody.”
Most significantly and most forthrightly, the Division Bench mandates in para 10 of this commendable judgment that, “The Apex Court has lucidly explained the legal principles concerning child custody, emphasizing that the welfare and interests of the child are paramount in such decisions. The Courts have the authority to modify custody orders if there are changes in circumstances that affect the well-being of the child. Even when orders are based on agreement/understanding between parents, they can be revisited if the situation changes and it’s deemed necessary for the welfare of the child. The main focus is always on ensuring the best possible environment for the child, rather than strictly adhering to the rights of the parents or past judicial decisions. The well-being of the child encompasses not only their physical health but also their moral and ethical welfare.”
Finally and as a corollary, the Division Bench then concludes by holding in para 11 that, “In that view of the matter, we do not find any reason to interfere with the order passed by the Family Court, which is impugned in this proceeding. This Original Petition is dismissed.”
All told, we thus see that the Kerala High Court has made it indubitably clear in this notable judgment that custody orders are not absolute. It was also made absolutely clear that courts are authorized to modify child custody orders. There can be thus no gainsaying that Courts must be crystal clear that they are authorized to modify child custody orders and can be revisited if the well-being of the child is at stake. No denying it!
Sanjeev Sirohi