Family courts have the power to vary child custody orders if the situation changes; the doctrine of res judicata does not apply: High Court of Kerala

The Kerala High Court has upheld an order of the Family Court which held that in child custody matters: the parties are free to go to court and request a variation of the order if there is a change in circumstances. The Family Court added The order initially passed cannot be said to be final because the doctrine of res judicata is not applicable in child custody matters.

While dismissing the petition against the family court order, a division bench of Justice Raja Vijayaraghavan V and Chief Minister Manoj reiterated that “TThe courts have the power to vary custody orders if there are changes in circumstances affecting the child’s welfare. Even when orders are based on agreement/To promote understanding between parents, these can be reviewed if the situation changes and this is deemed necessary for the child’s well-being”.

The petition was filed against the family law order wherein the respondent sought to change the order of custody of the child. The petitioner challenged the maintenance of the petition in the Family Court, claiming that the respondent filed the petition only to prolong the case. The defendant refuted the allegations and highlighted the child’s mental health issues in this case.

The family court heard the request and declared that a request to modify the custody agreement was maintainable.

The petitioner argued before the court that by granting the request for modification, the Family Court was in effect condoning the conduct of the respondent and that the Family Court should insist on compliance with a compromise decree.

Counsel for the defendant has argued that in child custody cases the doctrine of res judicata would not apply. The defendant argued that in determining the custody issue, the overriding consideration would be given to the welfare and best interests of the child and not to the parents’ rights under the law.

The Kerala High Court rejected the petitioner’s arguments and held that the stand of the Family Court dismissing the preliminary objection regarding the maintainability of the amendment petition filed by the mother cannot be compromised.

Counsel for the petitioner: Advocates Praveen K Joy and Abisha ER

Counsel for the defendant: 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