Court to perceive things not visible to naked eyes in child custody matters: Supreme Court

The Supreme Court has said in child custody matter, the courts while exercising parens patriae jurisdiction oftener than ever are faced with the problem of the parents having custody, using the child as a tool to settle scores arising from the marital fights.

So the courts must perceive things which are not visible to the naked eye, read between the lines and separate the grain of truth from the chaff of rancor, animosity and bitterness resulting from an estranged relationship, it added.

A bench of Justices Ujjal Bhuyan and K Vinod Chandran dismissed a plea by a mother against the Karnataka High Court's order allowing inpatient evaluation of a minor girl child at NIMHANS, Bengaluru since she displayed an offensive behaviour towards the father.

The court directed the District Child Protection Officer alongwith the childs mother to produce her before NIMHANS on July 04, 2025 at 11:30 AM. After the admission of the child for her independent evaluation, the doctors-in-attendance would take a decision regarding stay of the mother with the child and/or her visitation during the course of evaluation of the child at NIMHANS.

Likewise, the court further clarified, the doctors-in-attendance would also take a decision regarding visitation of the father on such dates, time and frequency during the period of evaluation of the child at NIMHANS. Such a decision would also be taken regarding the visit of the District Child Protection Officer.

"On completion of the evaluation exercise, NIMHANS shall furnish a report to the Registrar (Judicial) of the High Court of Karnataka in a sealed cover. Post evaluation NIMHANS shall permit continuation of the custody of the child with the mother as previously ordered by the Court with visitation facility for the father depending upon their evaluation, till such time, the matter is listed before the High Court of Karnataka," the bench said.

This is an unfortunate case where it appears to us that a minor child is caught in the web of matrimonial tussle between her parents. Prima facie, it appears to us that the mother has obstinately deprived the father of the company of their minor child, overreaching orders issued by the High Court of Karnataka and thus also interfering with the due exercise of the parens patriae jurisdiction, the bench said.

The matter was concerned with a Guardian and Wards Case filed by the father seeking custody of his minor daughter, born in the wedlock with the petitioner herein.

Their marriage took place in 2011, and the daughter was born in 2014, after which the wife is said to have left the matrimonial home in 2021.

An FIR was registered by the wife under Section 498A of the Indian Penal Code, 1860 and in the G & W case filed by the father-the respondent herein. The child was placed under the custody of the mother with visitation rights every fortnight between 9 am to 11 am under the strict supervision of the respondent mother and also permitted interaction with the child by video conferencing, once in a week, again under the strict supervision of the mother. The interim order was to continue till the disposal of the case.

The father sought modification of the interim order, seeking unsupervised overnight cohabitation for the weekends and for 50% of school holidays.

The High Court had considered the age of the child, the requirement for the company of both the parents and the need for her overall development, which would be possible only with the fruitful association of both parents and their families. It allowed the father to have interim custody for half of the summer vacations of the child.

The mother was directed to produce the child before the Registrar (Judicial) on April 06, 2025; which was not complied with.

When the matter came up again on April 08, 2025, the mother was directed to ensure the presence of the child on April 09, 2025 at 02:35 pm, failing which coercive measures were threatened. The mother refused to comply with the order and the Counsel on record feigned ignorance of the whereabouts of the mother and the child. The court directed an inquiry to be conducted by the Commissioner of Police and restrained the duo from leaving the jurisdiction of the court.

The mother approached the apex court and on mutual agreement, the child was directed to be brought to the High Court on April 21, 22 & 23, 2025 at 11 am, to enable the father to have custody till 6 pm on the first two days. On April 23, it was further directed by this court, that the child on production would be handed over to the father for two days and the father was also directed to hand over the child back through the Registrar (Judicial) on April 25, 2025.

On April 22, 2025, when the child was produced, she is said to have refused to even look at the father. The child displayed reluctance and in an offensive display, asserted that she is not an object and cannot be compelled to meet the father.

Based on the report of the Registrar (Judicial), the court opined that the behavior of the child was a result of parental alienation and tutoring by the custodial parent. The court, in the interest of the child, directed the child to be again produced on April 26, 2025 at 11 am before the Registrar (Judicial) to enable joint counselling of the father and daughter with permission granted to the mother to participate in the counselling session, if she desires.

Undaunted, the mother refused and produced a certificate from a doctor in a private hospital, certifying the child to have disturbed sleep, anger outbursts, irritability, low mood, loss of pleasure and interest and so on. It was opined that this was due to her participation in the proceedings in the court and the fear of being taken away from the mother.

Based also on the certificate produced by the mother, the child was directed to be examined at the National Institute of Mental Health and Neurosciences (NIMHANS) on three consecutive days in the presence of the mother, the District Child Protection Officer being directed to accompany them. The mother failed to comply with the said order too, and it was reported that she, along with her child, had left for Delhi.

The Commissioner of Police, Bengaluru was directed to produce the mother and the daughter on May 02, 2025 on which date it was informed that a team of officers are in Delhi since the mother and the child were found to be in the vicinity of the Supreme Court of India. A review petition filed against the earlier order of this court was dismissed and the bailable warrants issued by the High Court was directed to be not executed; based on the undertaking of the mother to appear before the High Court. It was then that the evaluation was done by the NIMHANS.

Mental status evaluation was done on May 05, 06 and 07, 2025 and the report filed sought for an inpatient evaluation of the child for four to six weeks.

The High Court then directed the NIMHANS to furnish a detailed reasoning for such inpatient evaluation. The report of May 22, 2025 filed by the NIMHANS was produced before court and after hearing both the parties and interactions with both Counsel as to how best the issue can be resolved, the court directed the District Child Protection Officer to take the child alongwith the mother on June 15, 2025 at 11:30 am to NIMHANS, for admission and directed the hospital to ensure that the minor child is kept in an environment where she is comfortable and away from the other patients.

It was this order which has been challenged before the apex court.

"We have detailed the facts regarding the various orders passed and their non-compliance only to highlight the adamant attitude displayed by the mother in somehow depriving the father of the company of the minor child," the bench said.

The court noted the High Court found the offensive manner in which the child responded before the Registrar (Judicial) could possibly be the result of tutoring, effectively poisoning the mind of the child against the father.

"In exercise of the parens patriae jurisdiction, the courts are often attempted to be misled by vicious accusations made by the spouses against each other. The judicial mind must rise above such accusations made, which is motivated by the resentment, resulting from a troubled marriage and keep in mind the paramount consideration which is the welfare of the child; always, ideally served by the company of both the parents and their families," the bench said.

However, when disputes arise between the parents and the hatred emanating from the troubled relationship clouds their minds and the custodial parent uses the child as a tool to avenge the perceived injustices meted out by the other, then the court steps in, in the interest of the child, the bench added.

The court noted the High Court, despite being faced with consistent disobedience of the orders passed, behaved with utmost restraint and always tried to ensure the welfare of the child, while also allaying the anxieties of the mother, by enabling participation in the reconciliation process attempted between the child and the father.

"The conduct of the mother however reveals that she is against any such reconciliation and the challenge against the order of an independent evaluation by NIMHANS is also motivated by the animosity against her husband," the bench said.

The bench emphasised the inpatient admission in NIMHANS, a premier institute of mental health, is neither for the treatment of the child nor is there a finding entered into by the court of any mental illness.

"In fact, the medical certificate produced by the mother itself indicates that the child is under stress and has anxiety problems, more due to the estranged relationship of her parents. The fear of being removed from the company of the mother, though is probable, it is to allay such fear and also to find out the cause of her anger against her father that the inpatient evaluation is suggested," the bench said, referring a report by the NIMHANS relied on by the High Court.

Rejecting the opposition by the mother, the bench said there was a larger purpose involved in attempting a reconciliation with her father and to find out the mind of the child, by such independent evaluation, which would be in the best interest of the overall development of the child.

Case Title: Ms Amrita Sinha Vs Mr Shwetabh Sahay