- Custody rulings can be altered if in the best interest of the child, Supreme Court said
- Child's health suffered anxiety after custody was given to father, court noted
- A father-son relation can only be fostered patiently over the course of years, the court said
Court judgments on a child's custody in matrimonial dispute cases cannot be "rigid" and "final", and courts are entitled to alter rulings in the best interest of the minor, the Supreme Court has said, reversing its order to hand over a 12-year-old boy's custody to his father.
The bench of Justice Vikram Nath and Justice Prasanna B Varale noted that the custody order had a "calamitous effect" on the child's health, and he had been suffering from anxiety.
According to the judgment, the child's parents married in 2011, and he was born in 2012. The couple separated a year later, and the infant's custody was handed over to the mother. The mother remarried in 2016. Her second husband had two children from his earlier marriage, and the new couple had a child of their own.
The father said he was unaware of the child's whereabouts till 2019, when the mother contacted him for some paperwork because she and her second husband had decided to relocate to Malaysia with the children. The father also said that he came to know that the child's religion had been changed from Hindu to Christian without his consent or knowledge.
The father then approached a family court for the child's custody, but got no relief. He challenged this in the High Court, which granted him the child's custody. The mother moved the Supreme Court against this order, but the top court dismissed her appeal in August last year.
The mother approached the court with a fresh prayer, contending that the custody change order "caused an immense negative impact on the mental health of the child". Her arguments were backed by a clinical psychologist's report, stating that the minor child has a high risk for separation anxiety disorder.
Custody orders, the court said, cannot be made "rigid" and courts can "mould" them in the best interest of the minor. "The core and inalienable standard is the paramount consideration of the child's welfare, which is affected by an array of factors, is ever evolving and cannot be confined in a straitjacket," it said.
The court noted that the couple separated when the child was 11 months old. Since then, the child has met his biological father only a handful of times and has been away from his mother. "In such circumstances, taking the drastic step of changing custody would amount to upsetting his familiar environment and taking 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," the court said in its order.
The court noted that reports of the child's psychological assessment have indicated him to be undergoing significant anxiety, difficulty in coping with emotions and separation anxiety due to the looming threat of custody change.
"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 further deteriorate the emotional well-being of the child," the court said.
The court also said that the High Court's order of granting permanent custody of the boy 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 Supreme Court said this consideration weighed heavily when it dismissed the appeals.
"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," the court said.
Noting that the boy is at the cusp of adolescence, the court said the child has been exclusively with his mother since he was 11 months old 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 his mother's arms and finds her presence to be calming."
The court also noted that the mother remarried when the child was not even four. "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 order said.
The court also noted that the 12-year-old perceives the child born to his mother from her second marriage as his sibling and "shows a great amount of fondness for his younger brother". "Therefore, it becomes quite 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... 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," the court said.
The court, however, acknowledged the biological father's desire to play an active role in the child's life and directed the mother to facilitate visitations. "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 (mother) is advised to encourage the child to accept and welcome both the parents in his life for a well-rounded development," the court said.
The court also noted that mother's allegation that the father threatened the child with separating him from his mother, causing further deterioration in his mental health. The father denied these allegations. The court noted that the father cannot 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," the court said.
