A) ABSTRACT / HEADNOTE

The case Eby Cherian v. Jerema John deals with the critical issue of interim custody of a minor child amid matrimonial discord. The appellant–father, engaged in rotational overseas assignments, sought a definitive interim custody and visitation schedule, opposing the Family Court’s directive requiring fresh interlocutory applications (IAs) each time he visited India. The High Court upheld the arrangement but provided ad hoc relief for limited dates. Aggrieved, the appellant approached the Supreme Court. The Court emphasized that meaningful contact with both parents is integral to a child’s welfare and that the burden of repeated applications undermines both the non-custodial parent’s rights and the child’s best interests. Relying on the principle of child welfare as paramount under Section 17 of the Guardians and Wards Act, 1890 and Article 227 of the Constitution of India, the Court restructured the interim arrangement. It directed a standing schedule for custody during weekends, vacations, and festivals, supplemented by regular video interactions, thus balancing stability with parental access. The Court categorically held that piecemeal orders erode the predictability essential for a child’s holistic development. The judgment underscores that procedural technicalities must not impede substantive justice in custody matters, aligning with precedents such as Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 and international instruments like the Convention on the Rights of the Child, 1989.

Keywords: Permanent custody of child; Interim-custody arrangement; “Apply-each-time” system; Definitive visitation schedule; Child’s welfare; Overnight custody; Family Court procedure; Meaningful parental contact; Video interaction; Structured timetable.

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

This case revolves around the delicate and evolving contours of child custody jurisprudence, wherein the rights of parents are subject to the overarching doctrine of the welfare of the child. The appellant–father, an engineer employed on rotational overseas assignments, married the respondent in 2016. Their daughter was born in 2017, but following marital discord, the respondent left the matrimonial home in 2023 with the child. Since then, the child has remained in her exclusive care. The appellant filed a custody petition before the Family Court in Ernakulam, seeking permanent custody, and pending its outcome, requested interim visitation rights.

The Family Court permitted video calls and limited overnight custody, but imposed the onerous condition that the appellant must file a fresh IA on every visit to India. Consequently, the appellant filed multiple applications and petitions, cumulatively securing limited access. The High Court upheld this arrangement, directing that the appellant continue applying afresh. Dissatisfied, the appellant approached the Supreme Court, contending that the arrangement was procedurally burdensome, financially draining, and against the best interests of the child.

The Supreme Court examined whether repeated applications for interim custody, pending adjudication of permanent custody, were justifiable, or whether a structured, standing arrangement better serves the welfare of the child. The Court’s reasoning reflects an attempt to balance the stability of the custodial parent with the right of the non-custodial parent to meaningful access, invoking both domestic statutory frameworks and international child rights principles.

D) FACTS OF THE CASE

The appellant, Eby Cherian, married the respondent, Jerema John, on 10 January 2016. Their daughter, Manna Ann Eby, was born on 17 October 2017. Due to marital discord, the respondent left the matrimonial home on 4 March 2023 with the child, who thereafter remained under her sole care in Ernakulam. The appellant, employed abroad, initiated custody proceedings before the Family Court, Ernakulam, under O.P. No. 1085 of 2023 seeking permanent custody. Pending this, he sought interim visitation.

The Family Court on 21 September 2023 allowed daily video calls and one weekend of overnight custody but directed that the appellant must file a separate IA whenever in India. Between September 2023 and May 2024, the appellant filed 20 IAs and four original petitions before the High Court, cumulatively securing only 37 days of physical access in an academic year. He argued that this arrangement caused uncertainty, consumed his limited leave, and increased expenses.

He sought a standing arrangement granting alternate weekend access during his visits to India, division of vacations, and continued video interaction. The respondent opposed, emphasizing her role as the sole caregiver and alleging harassment during marriage. She asserted that any long-term arrangement must await the trial’s conclusion, highlighting that the appellant’s overseas employment prevents day-to-day caregiving.

The High Court dismissed his plea, granting only ad hoc relief for limited dates. Mediation at the Supreme Court failed. The core issue thus before the Apex Court was whether the Family Court and High Court were correct in insisting on repeated IAs instead of granting a structured interim schedule.

E) LEGAL ISSUES RAISED

i. Whether requiring the appellant to file fresh interlocutory applications for custody during each visit violates the welfare principle governing child custody?
ii. Whether a standing interim arrangement can be judicially crafted pending final adjudication of custody?
iii. Whether the non-custodial parent’s right to access must yield to procedural requirements of the Family Court?
iv. How should courts balance the custodial parent’s stability with the child’s right to meaningful contact with both parents?
v. Whether international principles on child rights and parental access influence interim custody determinations in India?

F) PETITIONER / APPELLANT’S ARGUMENTS

i. The appellant contended that the Family Court’s requirement of filing a fresh IA on each visit was impracticable, particularly since custody litigation often extends for years. The repeated process deprived him of quality time with his daughter and drained financial resources.

ii. He highlighted that after resigning from Angola in April 2024 and joining employment in the UAE, his professional life was structured around his daughter’s calendar, necessitating a settled interim timetable.

iii. Despite filing 20 IAs and four petitions, he had secured only 37 days of access over an academic year, which was grossly inadequate. Each application was hotly contested, exhausting his limited leave.

iv. He relied on the Family Court counsellor’s report noting the child’s comfort in his company. He sought equal share in vacations and regular weekend contact, submitting that this was essential for her emotional development.

v. He pointed out that he had been remitting ₹20,000 monthly maintenance since September 2023 but was kept uninformed about the child’s education and health, impairing his parental involvement.

vi. The appellant also raised concerns about the respondent’s health issues, including seizures, which in his view reinforced the need for predictable custody periods with him.

G) RESPONDENT’S ARGUMENTS

i. The respondent alleged that the marital relationship was strained due to harassment by the appellant and his family, compelling her to leave with the child in March 2023.

ii. She maintained that since then, she had been the sole caregiver addressing all educational, medical, and emotional needs of the child. Frequent custody transfers would disrupt the child’s routine and stability.

iii. She argued that the appellant’s overseas employment disqualified him from providing day-to-day care. His absence for prolonged periods proved that the child’s welfare was best secured under her exclusive custody.

iv. The respondent stressed that O.P. No. 1085 of 2023 was still pending, and a long-term arrangement could only emerge after evidence was recorded and the matter finally adjudicated.

H) RELATED LEGAL PROVISIONS

i. Section 17, Guardians and Wards Act, 1890 – welfare of the child is the paramount consideration in custody disputes.
ii. Sections 7 and 12, Guardians and Wards Act, 1890 – courts’ power to appoint guardians and grant interim custody.
iii. Section 6, Hindu Minority and Guardianship Act, 1956 – father as natural guardian, but welfare paramount.
iv. Article 227, Constitution of India – supervisory jurisdiction of High Courts over family courts.
v. Convention on the Rights of the Child, 1989 (Articles 9 & 18) – child’s right to maintain contact with both parents.

I) JUDGEMENT

The Supreme Court held that compelling the appellant to file fresh IAs for interim custody on every visit was an undue procedural burden. It stressed that custody litigation moves slowly, and piecemeal orders deprive the child of stability and the non-custodial parent of meaningful access. The Court emphasized that meaningful contact with both parents is integral to a child’s welfare. It observed that the appellant demonstrated consistency, paid maintenance, and arranged his professional life around the child’s calendar. Therefore, procedure should not obstruct a predictable schedule.

The Court recognized the High Court’s concern about the pending trial but clarified that until final adjudication, a structured interim timetable was imperative. It accordingly set aside the High Court’s order and issued detailed directions creating a standing interim arrangement covering weekends, vacations, and festivals. Safeguards regarding travel, video interaction, and communication were incorporated. Importantly, no further IAs were required for visitation. The Court urged the Family Court to expedite final adjudication of the custody petition.

Result: Appeal partly allowed.

a. RATIO DECIDENDI

The ratio decidendi of the case lies in the Supreme Court’s determination that the welfare of the child, which includes meaningful and consistent contact with both parents, cannot be subordinated to rigid procedural requirements. By setting aside the “apply-each-time” model, the Court held that courts must proactively create structured, standing interim arrangements where circumstances so demand, rather than relying on ad hoc, repetitive applications. The ruling reinforced the principle that child welfare requires predictability, emotional stability, and a balanced relationship with both parents.

This reasoning aligns with Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42, where the Court reiterated that custody must be guided not by legal rights alone but by the best interests of the child. It also echoes Roxann Sharma v. Arun Sharma (2015) 8 SCC 318, emphasizing that the welfare of the child supersedes parental claims. Internationally, the principle resonates with Article 9 of the Convention on the Rights of the Child, mandating that children must not be separated from either parent except when contrary to their best interests.

b. OBITER DICTA

The Court observed that custody litigation in Family Courts generally proceeds at a “measured pace” and that repetitive applications invite avoidable conflict, consume judicial time, and diminish the child’s quality of life. The Court underscored that the absence of structured interim arrangements leaves children vulnerable to instability and undermines parental cooperation. It further remarked that procedural formalism should never override substantive justice in family disputes.

The obiter dicta highlight the need for courts to adopt innovative, child-centric approaches, such as video interactions and collaborative parenting activities. It encourages courts to appreciate the emotional needs of the child and recognize the sacrifices made by non-custodial parents. These observations pave the way for evolving jurisprudence on shared parenting models in India, reflecting global trends.

c. GUIDELINES

The Court issued comprehensive directions to govern interim custody until final adjudication:

i. The appellant shall have custody during weekends whenever in India for at least seven consecutive days.
ii. Summer vacations shall be equally divided between both parents, subject to the appellant’s presence in India.
iii. Festival vacations shall be split into contiguous blocks with prior consultation, failing which the Family Court shall resolve logistics.
iv. The custodial parent shall not take the child outside Kerala without written consent of the other parent.
v. Regular video interactions shall occur thrice on weekdays and once on weekends.
vi. No fresh interlocutory applications shall be required for future visitation.
vii. The appellant shall intimate his visits in advance by email, and silence of the respondent shall imply consent.
viii. The Family Court may vary only logistical aspects, not the quantum of access, unless materially changed circumstances arise.

J) CONCLUSION & COMMENTS

The judgment in Eby Cherian v. Jerema John exemplifies a progressive shift towards recognizing the rights of non-custodial parents while reiterating that the child’s welfare is paramount. By dismantling the rigid “apply-each-time” procedure, the Supreme Court acknowledged that procedural hurdles must yield to substantive justice in family law. The ruling is significant as it institutionalizes structured interim custody schedules, thereby reducing litigation, conflict, and instability.

The Court’s approach mirrors global standards where shared parenting and predictable access schedules are emphasized. It acknowledges the sacrifices of working parents, particularly those in overseas employment, while balancing the custodial parent’s concerns. The guidelines are practical, sensitive, and child-centric, offering a replicable model for lower courts handling similar disputes.

The ruling, however, also places a responsibility on the Family Court to expedite the final determination of custody. Until then, the structured arrangement provides much-needed stability. This case strengthens the jurisprudential shift towards ensuring children enjoy the affection and guidance of both parents, resonating with both domestic statutes and international conventions.

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K) REFERENCES

a. Important Cases Referred

i. Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
ii. Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.
iii. Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
iv. Sheoli Hati v. Somnath Das, (2019) 7 SCC 490.
v. Lekha v. P. Anil Kumar, (2006) 13 SCC 555.

b. Important Statutes Referred

i. Guardians and Wards Act, 1890 – Sections 7, 12, 17.
ii. Hindu Minority and Guardianship Act, 1956 – Section 6.
iii. Constitution of India – Article 227.
iv. Convention on the Rights of the Child, 1989 – Articles 9, 18.