Courts authorised to modify child custody orders: Kerala High Court

Courts are authorised to modify child custody orders depending on change in circumstances and taking into account the welfare of the child, the Kerala High Court recently held. .In an order passed on April 11, a Division Bench of Justices Raja Vijayaraghavan V and P M Manoj said 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 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 Court stated..It was considering a petition challenging a family court order which had held that a modification application by the mother of the child (respondent) concerning child custody, was maintainable. While doing so, the family court had emphasized that the child's welfare would gain precedence over the parents' statutory rights. It had further said that the custody order passed initially could not be considered absolute.This prompted the father (petitioner) to move the High Court questioning the maintainability of the mother's application.The petitioner's counsel alleged that it was a tactic to prolong proceedings and was in clear violation of his custodial rights as per the compromise decree..However, the counsel for the respondent highlighted the child's mental health issues, emphasising on the necessity of revisiting the custody arrangement for the child's well-being..The High Court directed the parties to be present in court personally with the child.It then observed that when the child was produced, he displayed signs of distress and kept close to his mother and insisted on not wanting to be with his father.After a thorough analysis of the facts and the present condition of the child, the Court observed that mutual agreement between the parties cannot be the basis to uphold custodial rights of parents. When circumstances relating to the child's well-being is in question, custodial orders can be subjected to modification, the Court underlined.It 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, therefore, upheld the family court's decision and dismissed the father's plea. .The petitioner was represented by advocates Praveen K Joy and Abisha ER.Advocates TD Susmith Kumar, TO Deepa, Jaykar KS and C Sivadas appeared for the respondent..[Read Order]