Children In Custody Battle Should Be Called To Court Only In Unavoidable Situations, Must Be Treated With Highest Dignity, Privacy: Kerala HC

The Division Bench of Justice Devan Ramachandran and Justice M. B. Snehalatha ordered that children should be called to the Court premises only sparingly even if it is for the purpose of counselling or other statutory proceedings. The Court added that in cases where they are asked to be produced, they should be treated with dignity and privacy. The Court said that the children should not be made to wait infinitely till the court proceedings are over but should be given preference subject to the workload of the Court.

Further, the Court said that only in cases where exceptional reasons are record should the child be exchanged for interim or final custody in the premises of the Court. The Court said that though sometimes it is essential for the exchange to happen at court premises – to enter the appearance in the register maintained by the Court- it is better if it is done at a neutral place, preferentially with the consent of the parties. The Court opined that this would considerably reduce the strain on the children.

The Court mentioned that they have come to know through their interaction with the children that they do not like to come to courts.

“Our experience has shown that children are unwilling to go to Courts, or to be taken there under orders; and many of them have told us, in unequivocal expression of angst, that they feel that they are being paraded as articles, rather than as humans. Even when custody arrangements are made, with the place of exchange being fixed as the Court premises, or the Office of the Chief Ministerial Office (CMO), we have found similar dread being expressed by children”

The Court added that in matrimonial cases, many a times, the plight of the children is overlooked by the courts and the parents.

“..somewhere along the line, when dealing with the increasing number of matrimonial issues, courts- not deliberately, but in the quest to maintain expedience and for lack of adequate time-many a time, tend not to look at the plight of children with the requisite empathy. The parents – consumed by their personal emotions – invariable overlook the trauma of the children and fight for their custody and other arrangements, with vigour and passion, often unseen in other type of litigations.”

Background of the Case

The instant case dealt with the custody of a 9-year-old child. His custody was initially given to the mother by the Family Court as consented by the parties. The father was given custody during certain days of the week and during the holidays.

Later, the father approached the Family Court again alleging that the mother was violating the order by not handing over the custody of the child in the specified days. The mother also moved the court to modify the order on the ground that the child was unwilling to go with the father. The Family Court gave the custody to the father while giving mother only interim custody for certain days.

Against this order, the mother approached the High Court saying that the new arrangement was contrary to the wishes of the child and was causing excruciating trauma to him. Subsequently, in one of the dates when the case was posted, the child was brought to the chambers of the Judges. The Court noted that the child was clinging to the mother and was unwilling to interact with his father.

Furthermore, the child told the Judges that he hates coming to the Court. The judgment recorded that the child told them that he feels 'dehumanized and stigmatized, being paraded in front of people as virtual chattel of dispute between his parents'.

The High Court restored the initial order of the Family Court giving custody of the child to the mother. Additionally, the Court changed the place of exchange of the child from the Munsiff Court.

Counsel for the Petitioners: Advocates D. Arun Bose, K. Viswan, P. S. Pooja

Counsel for the Respondents: Advocates V. A. Hakeem, Habnam Hakeem, Sivalakshmi K., Alka Maria Martin, Rahul O.

Case No: Mat. Appeal 288 of 2025

Case Title: XX v YY

Citation: 2025 LiveLaw (Ker) 248