Family Courts Have Power To Modify Child Custody Orders If Situation Changes, Doctrine Of Res Judicata Not Applicable: Kerala High Court

The Kerala High Court has upheld an order of the Family Court which stated that in child custody matters, it is open to the parties to approach the court and seek modification of the order if there is any change of circumstances. The Family Court added that the order passed initially cannot be said to be final, stating that the doctrine of res judicata is not applicable in child custody matters.

While dismissing the petition challenging the Family Court order, a division bench of Justice Raja Vijayaraghavan V and Justice PM Manoj reiterated that “the Courts have the authority to modify custody orders if there are changes in circumstances that affect the well-being of the child. Even when orders are based on agreement/understanding between parents, they can be revisited if the situation changes and it's deemed necessary for the welfare of the child”.

The petition was filed challenging the family court order in which the respondent sought to modify the order of the custody of the child. The petitioner challenged the maintainability of the application before the family court and claimed that the respondent had only filed the application to protract the matter. The respondent countered the allegations and highlighted the child's mental health issues in the matter.

The family court considered the application and stated that an application seeking to modify the custody agreement was maintainable.

The petitioner submitted before the court that by allowing the application seeking modification, the Family Court was essentially condoning the conduct of the respondent and that the Family Court ought to insist on compliance with a compromise decree.

The counsel for the respondent submitted that in matters concerning custody of child, the doctrine of res judicata would not be applicable. The respondent argued that while determining question of custody, the paramount consideration would be given to the welfare and interest of the child and not the rights of the parents under the statute.

The Kerala High Court rejected the petitioner's arguments and maintained that the stand taken by the Family Court while rejecting the preliminary objection as regards the maintainability of the application filed by the mother seeking modification, is not liable to be interfered with. 

Counsel for Petitioner: Advocates Praveen K Joy and Abisha ER

Counsel for Respondent: Advocate TD Susmith Kumar

Case Citation: 2024 LiveLaw Ker 260

Case Title: Thomas @ Manoj EJ v. Indu S

Case Number: OP (FC) No. 674 of 2023

Click here to read/download the order