Love & affection not enough in child custody cases: Supreme Court

The Supreme Court recently set aside the Kerala High Court's order which allowed a man, working in Singapore, to have interim custody of 15 days to his three-year-old son and eight-year-old daughter after finding that he was not able to provide home-cooked food to them and there was no one else in his rented accommodation to look after the kids.

A bench of Justices Vikram Nath, Sanjay Karol and Sandeep Mehta pointed out that it has been authoritatively held that in cases of child custody, the paramount consideration should be the welfare of the child.

"The utmost sincerity, love and affection showered by either of the parents, by itself, cannot be a ground to decide the custody of a child," the court emphasised.

Keeping in view the principles and adverting to the facts of the case at hand, the bench said, "We feel that the interim arrangement, as charted out by the High Court in the impugned order, granting 15 days’ alternative custody of both the children to the parents, is neither feasible nor conducive to the well-being, mental and physical, of the children".

Examining the mother's plea, the court found, after interaction with the girl child, that she was very intelligent, expressive and composed. She gave mature and well-balanced responses to the queries and dhe expressed her love and affection for both her parents.

However, she seemed uncomfortable with the 15-day periodic custody arrangement dividing her time between the father and the mother. She was candid in her stand that during the period for which she stayed with the respondent-father, all the food which was provided to her had been ordered from restaurants/hotels, etc. Not one meal was a home-cooked one. She also expressed that there was no one to keep her company except for her father during this period of 15 days, the court noted.

The court pointed out that the son had hardly lived with his father in Singapore.

"Thus, directing the custody of the tender aged boy to be assigned to the respondent-father, even on an interim basis for a period of 15 days each month, is grossly unjustified and may have serious adverse effects on the emotional and physical well-being of the child and may create a sense of deep insecurity in the boy owing to forced separation from the mother," it said.

The interim arrangement made by the high court to the extent of the three-year-old son is totally uncalled for and unsustainable on the face of the record and is hereby set aside, the court declared.

With regard to the interim custody of the eight years old daughter to the respondent-father, the bench said, "We feel that the intervening circumstances and the information provided by the child during interaction fortifies the genuine concern shown by the appellant mother that the environment being provided to the child by the father during the interim custody period of 15 days may not be conducive to her physical and emotional well-being."

Continued consumption of food procured from restaurants/hotels would pose a health hazard, even to a grown-up person, what to talk of a tender-aged child of eight years. The child definitely requires nutritious home-cooked food for her overall well-being, growth, and development. Unfortunately, the respondent-father is not in a position to provide such nutrition to the child, the bench said.

The court opined that it could even have considered giving an opportunity to the respondent-father to make suitable arrangements for providing home-cooked food to the child, but the fact that the child got no company whatsoever except for that of the father during the interim custody period of 15 days was an additional factor which weighed heavily against his claim for the child’s custody at that stage.

In contrast, the court noted, the parents of the appellant-mother were staying with her. She had the advantage of the facility of working from home. That apart, the younger brother of the girl child was there to provide her healthy company.

Hence, the emotional and moral support which the child gets at her mother’s home is manifold than what is being provided by the father. The period of 15 days during which the daughter would be with the father would also lead to deprivation of her company to her sibling, the boy child aged three years, it further said.

The appellant-mother assailed the said order of the high court, granting periodical interim custody of both the children to the respondent-father.

She raised serious concerns regarding the environment being provided to the daughter during the interim custody period of 15 days granted to the respondent-father by the high court. She submitted that though the respondent-father had taken a flat in Thiruvananthapuram on rent and travelled from Singapore every 15 days to gain interim custody of the child, the other conditions of the high court’s order were not being adhered to by him. Her primary and genuine concern was that the respondent-father had not engaged a nanny in terms of the high court’s direction.

She further submitted that home-cooked food was not being provided to the girl child in this period, and that all the meals were procured by ordering from restaurants/hotels, etc. She further submitted that the child did not have any company whatsoever other than the respondent-father and thus, her overall growth and emotional well-being were being adversely affected owing to this isolated atmosphere due to which the child might even suffer permanent emotional scars.

The respondent-father pleaded that he was taking care of the child with all the sincerity and intent of a caring parent. He travelled from Singapore religiously adhering to the timeline fixed by the high court so that he could spend quality time with the child and develop a stronger bond with her. He said that his mother often visited the flat at Thiruvananthapuram to provide home-cooked food to the child and to keep her company.

However, the fact that a nanny had not been engaged in terms of the high court order was not disputed. He further submitted that he was unequivocally prepared to abide by any condition so as to restore the matrimonial ties with the appellant-mother.

The court, however, refrained from adverting to this issue, saying it is for the spouses to find a mutual resolution.

On interim custody, the bench said, "We feel that the High Court clearly erred in granting interim custody of the children to the respondent-father for a period of 15 days every month. The arrangement made by the High Court was not arrived at by weighing the pros and cons of the situation."

The court said, the periodic division of custody was definitely adverse to the well-being; physical, mental and emotional, of the children.

"In a long run, this arrangement may prove extremely harmful and may cause irreversible mental trauma to both the children, the bench said.

The court held the high court's order granting interim custody of the children to the respondent-father for a period of 15 days every month was unsustainable on the face of record.

However, keeping in mind the fact that the respondent was a doting father who had shown his keen desire to have an equal and effective parenting role in the upbringing of his children, the bench said, depriving him of the custody of the children in entirety was neither acceptable nor justifiable and may destroy all chances of family bonding.

The court directed that he would be entitled to interim custody of the daughter on alternate Saturdays and Sundays of every month. On either of these two days, the respondent father will be entitled to meet and have interim custody of the boy child for a period of four hours subject to the comfort of the child. The court also allowed him to make video call/s for 15 minutes to both the children on every Tuesday and Thursday

The court allowed the mother's appeal and reversed the highourts order of December 11, 2024 and directed the family court to expedite the decision of the guardianship petition filed by the mother.

Case Title: Arathy Ramachandran Vs Bijay Raj Menon

Download judgment here