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Synopsis

The Supreme Court, on March 18, 2025, allowed a plea by a man to meet his 11-year-old son, despite the minor consistently stating that he is disturbed by visits to his father and does not want to continue them.

Court also chided the mother for attempting to prevent the visitation rights granted to the father after a consent decree between them.

A bench of Justices Sudhanshu Dhulia and Ahsanuddin Amanullah said the issue concerned the life of a minor child who had not yet attained maturity and was not in a position to decide what is best for him.

"Thus, the responsibility for him is also on the court which is seized of the matter. The court has to be extremely careful in taking a considered view, such that the interests of the minor child are adequately safeguarded," the bench said.

The appellant-father and the respondent-mother were married as per Hindu rites and rituals on April 15, 2012, and a male child was born to them on August 11, 2014. However, disputes arose between the parties, ultimately leading to their separation. During this time, the respondent-mother had physical custody of their minor son. On February 23, 2021, the parties filed a plea under Sections 13-B and 26 of the Hindu Marriage Act, 1955, before the Principal Judge, Family Court-cum-Additional Chief Judge, City Civil Court, Hyderabad, seeking divorce by mutual consent and custody of their minor son.

The family court allowed the divorce petition on September 2, 2021, granting a decree of divorce by mutual consent. It also held that the respondent-mother would have permanent custody of the minor son, while the appellant-father would have interim custody on weekends.

The appellant alleged that sometime in 2021, despite everything proceeding smoothly, the respondent unilaterally terminated all contact between the son and the father, despite his several efforts to maintain communication.

Thus, on February 6, 2023, he was compelled to file an execution petition before the family court, seeking the appointment of an advocate commissioner to implement the 2021 decree. During the proceedings, the family court passed various orders directing the respondent to send the minor son to the appellant on weekends. The family court also ordered the respondent to permit video calls between the appellant and the minor son for half an hour daily between 7:00 PM and 9:30 PM. However, this order was violated after a few days.

On January 19, 2024, the family court allowed the execution petition and subsequently appointed an advocate commissioner to execute the 2021 decree.

However, upon a challenge by the respondent, the high court, on March 13, 2024, through the impugned judgment, allowed the appeal filed by the respondent and remanded the matter back to the family court with a direction to decide it afresh, strictly in accordance with the law, within one month.

Assailing the high court's order, the appellant submitted that the high court ought to have considered that a minor child requires the love and affection of both parents, and the mere fact of divorce should not mean that the child is deprived of care from both parents.

His counsel argued that the high court ought to have considered that the minor child initially enjoyed his father’s company and that his later animosity towards him resulted from the respondent’s influence. This was evident as the child became increasingly agitated during court visits.

The respondent's counsel, on the contrary, submitted that the child was unhappy with the appellant for not spending enough time with him during visitations. The lack of interest was also evident in video calls, where the appellant constantly blamed the child for the situation, leaving him traumatized. Even the family court, in an interim order, recorded that the child was unhappy with his father and grandfather for not taking care of him and that his father was often busy with his friends, leaving only his grandmother and a staff member to attend to him.

After reviewing the details, the bench stated, "The picture that emerges, were we to attempt to conjure one, taking a gist of the additional material in its entirety, is that the minor son of the parties, during interactions several times with the courts, has stated that he was dis-inclined to even meet/visit the father and did not want to remain with him physically because of the appellant-father not giving him sufficient time/attention."

Court also noted that the appellant-father held the respondent-mother responsible for the minor son’s stance.

"While this may or may not be entirely true, the respondent-mother has, at times, attempted to stall a fruitful visit/interaction of the minor son with the appellant-father. Yet, the consistent stand of the minor son is that he is disturbed by the visits to his appellant-father and does not want to continue with the same," it said.

Citing Nil Ratan Kundu Vs Abhijit Kundu (2008), the bench pointed out that in deciding the difficult and complex question of minor custody, a court should consider relevant statutes and the rights flowing therefrom. However, such cases cannot be decided solely by interpreting legal provisions, as they involve human issues requiring a compassionate approach.

It also noted that the ‘best interest of the child’ principle has been elucidated in Nithya Anand Raghavan Vs State (NCT of Delhi) (2017). In Yashita Sahu Vs State of Rajasthan (2020), the court held that the welfare of the child is paramount in custody matters.

However, the court pointed out that there was much to be said about the conduct of the respondent-mother, who clearly attempted to prevent, obstruct, or stop the visitation rights granted to the appellant-father, despite a consent decree between the parties.

"We were seriously contemplating directing immediate compliance with the already existing decree before the respondent’s petition for modification of the original decree was heard and decided. However, being conscious of the fact that we are also in the parens patriae jurisdiction, and even interim arrangements could have a negative effect on the tender and fragile frame of mind of the minor son, we ultimately find that the matter needs fresh consideration. The impugned judgment is thus, not interdicted," the bench said.

The court held that during the interregnum, the father cannot be completely deprived of his minor son’s company.

Until the trial court decides the modification petition and the execution petition filed by the appellant, the bench ordered that the father would have visitation rights from 4:00 PM to 6:00 PM every Sunday. The son will be accompanied by his caretaker to the appellant-father’s house, where the caretaker will remain on the premises but not in the immediate company of the appellant-father, his family members, or the minor son. At 6:00 PM, the minor son will return to the respondent-mother with the caretaker, the court directed.

The court remanded the matter to the family court with a direction to conclude it expeditiously, no later than three months.

"If the respondent-mother were to obstruct the implementation of the arrangement in any manner whatsoever, it will be open for the appellant-father to apprise this court of the same. In such an eventuality, necessary consequences in law, including coercive measures, would follow," the court cautioned.

Case Title: Kiran Raju Penumacha Vs Tejuswini Chowdhury