Article 142: SC Allows Mother To Override Divorce Settlement On Child’s Religion, Surname And Custody

The Supreme Court has allowed a Hindu woman to have exclusive custody of her daughter with special needs and permitted her to change the child’s religion and surname to that of her stepfather, despite an earlier divorce settlement requiring the child to be brought up according to the religion of her biological father.

A Bench of Justices J B Pardiwala and K Vinod Chandran also quashed a POCSO case against the girl’s biological father, set aside the visitation rights granted to him and freed the woman from the terms of the memorandum of settlement entered into at the time of their mutual divorce.

Court said its decision was guided primarily by the well-being of the child, who had developed apprehensions about her biological father and a close affinity with her stepfather.

Why did the Supreme Court end biological father’s visitation rights?

Court held that continuing the father’s visitation rights would be detrimental to the child’s well-being, particularly because of the alleged incident that had been imprinted in her mind.

The case arose from an FIR registered at Hebbagodi Police Station, Bengaluru, on September 11, 2024, against the father under Sections 323 and 506 of the Indian Penal Code, 1860 (IPC) [Sections 115(2) and 351(2) of the Bharatiya Nyaya Sanhita, 2023, respectively], and Sections 8 and 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The father had challenged the proceedings before the Karnataka High Court, while the mother approached the Supreme Court seeking transfer of the POCSO case to Mumbai and the related proceedings to the Bombay High Court.

The Supreme Court interacted extensively with both parents and the child before passing its order.

“We also interacted extensively with the child, who we thought, though astute in understanding has acute problems in adjustment,” the Bench said.

Court said it was primarily concerned with the well-being of the child, who would otherwise have to undergo the trauma of reliving an experience which the court was “not sure was real or imagined”.

“The feeling is real in the mind of the child, but we have our own misgivings of what actually happened, considering the status of the child who has special needs,” it said.

The Bench observed that continued prosecution would jeopardise the child’s well-being and subject both parents and their families to “unending trauma”, particularly since both parents had remarried.

Court also noted that the mother and her husband were taking care of the child, while the father and his wife were caring for a child from the wife’s first marriage.

It therefore held that no fruitful purpose would be served by continuing the prosecution under the IPC and the POCSO Act.

“However, as we noticed, the alleged incident being imprinted in the child’s mind, continuation of visitation rights would also be in detriment of the child’s well-being,” the Bench said.

Court added that until the child’s apprehensions about her biological father faded, “any association between them would run contrary to the well being of the child”.

What did the divorce settlement say about the child’s religion?

The parents had entered into a memorandum of settlement on December 1, 2018, under which their marriage was dissolved by mutual consent. A decree was passed by the Principal Judge, Family Court, Bengaluru, on January 28, 2019, followed by the decree being drawn up on February 5, 2019.

Under the settlement, both parents were granted joint custody of the child. The mother had also undertaken to bring up the child according to the tenets of the father’s religion.

The mother later sought to be released from this undertaking, pointing out that the parents belonged to different communities and that the child was now being brought up in her household.

Court said the mother had expressed anguish over the child being “forced to follow a different religion” while growing up in her household, adding that such an arrangement would not be in the child’s best interest.

The mother also sought permission to discontinue the use of the biological father’s name and allow the child to take the name of her stepfather.

According to the mother, the child had developed apprehensions about her biological father and had formed a close affinity with her stepfather. The child had also questioned why she was not given the name of the man who lived with her and looked after her, as was the case with her friends.

“We cannot but bow down to the desire expressed by the child, communicated to us through her mother, especially in the peculiar circumstances coming out in this case,” the Bench said.

Exclusive custody to mother

The Supreme Court said it was therefore necessary to set aside the terms of the settlement while upholding the decree dissolving the marriage by mutual consent.

“It would be in the fitness of things that the mother be permitted to carry out the affairs of the child as she would desire, even if it goes against the terms of the memorandum of settlement,” the Bench said.

Court accordingly granted the mother exclusive custody of the child and permitted her to make suitable changes in the child’s school records and other records relating to citizenship and identity, so as to align them with the circumstances in which the child was being brought up.

With the mother’s consent, Court quashed the POCSO case against the father and brought the civil contempt proceedings and writ petition to an end.

The Bench, however, made it clear that its order was based on the “special and peculiar facts” of the case and was passed by invoking the Supreme Court’s jurisdiction under Article 142 of the Constitution.

Case Title: X Vs Y

Bench: Justices J B Pardiwala and K Vinod Chandran

Date of Judgment: September 10, 2026