A) ABSTRACT / HEADNOTE

The Supreme Court in Kiran Raju Penumacha v. Tejuswini Chowdhury (Civil Appeal No. 3842 of 2025) examined whether an execution petition to enforce a custody clause in a mutual-consent divorce decree can proceed independently while a modification petition filed by the custodial parent remains pending. The decree had awarded permanent custody of the minor to the mother with interim weekend custody to the father; subsequent breakdown in contact led the father to move an execution petition and the mother to move for modification.

The High Court remanded the matter to the Family Court to decide both petitions afresh. The Supreme Court refused to set aside that remand but, mindful of its parens patriae duty and the child’s welfare, directed a narrowly tailored interim visitation regimen two hours every Sunday (4:00 PM–6:00 PM) with a caretaker present until the Family Court disposes the matters within three months.

The Court balanced the need not to prejudice a pending modification against the father’s right to maintain a relationship with the child, emphasising that custody determinations are governed by the best interest of the child doctrine and that courts must shape specific, practicable visitation arrangements. The judgment reiterates that execution proceedings cannot be used to short-circuit custody law; yet, interim relief may be fashioned to protect the child’s welfare and preserve parental contact.

Keywords: Modification of Decree; Execution Petition; Custody of Child; Visitation Rights; Best Interest of the Child.

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

O.P. No. 421 of 2021 recorded a mutual-consent divorce under Section 13-B, Hindu Marriage Act, 1955 with a decree dated 02.09.2021 that awarded permanent custody of the minor son to the mother and interim weekend custody to the father. Subsequent to the decree the father alleged that the mother obstructed contact and ceased weekend handovers and video calls. He filed E.P. No.7 of 2023 for execution of the custody clause; the mother filed I.A. No.865 of 2023 seeking modification of the decree to alter interim custody.

The Family Court passed orders directing compliance and on 19.01.2024 allowed the execution petition, appointing an advocate-commissioner to enforce the decree. The mother challenged that order in Family Court Appeal No.19 of 2024 before the Telangana High Court, which allowed her appeal on 13.03.2024 and remanded both the execution petition and the modification application to the Family Court to be decided afresh. The father appealed to the Supreme Court seeking to restore the execution order or for specific relief.

The narrow legal question placed before the Supreme Court was procedural and substantive: whether execution could proceed while a modification application which could change rights conferred by the decree remained pending, and if not, what interim regime should protect the child’s welfare and parental ties during pendency.

The Supreme Court recognized competing imperatives:

(a) execution ordinarily enforces a decree, but

(b) custody modification is governed by welfare principles and specific family-law mechanisms (including the Guardians and Wards Act machinery), and courts exercising parens patriae jurisdiction must act cautiously so interim measures do not harm the child’s emotional stability.

D) FACTS OF THE CASE

The parties married on 15.04.2012 and a son was born on 11.08.2014. Following marital breakdown they lived separately. The divorce petition under Section 13-B and custody claims were filed on 23.02.2021. On 02.09.2021 the Family Court granted divorce by mutual consent, awarding permanent custody to the mother and interim weekend custody to the father. The father alleges that after some initial compliance the mother terminated all in-person and video contact, prompting E.P. No.7 of 2023 (filed 06.02.2023) to enforce the decree.

The Family Court, during pendency, issued interim directions for video calls and weekend visits; an order dated 19.07.2023 mandated video calls but compliance lapsed. The mother then filed I.A. No.865 of 2023 (03.10.2023) seeking modification of the interim custody provision, contending the child was agitated by visits and the father failed to spend appropriate time with him. The Family Court allowed the execution petition on 19.01.2024 and appointed an advocate-commissioner for implementation.

The mother appealed; the High Court remanded both matters for fresh decision. Additional materials before the Supreme Court included communications, psychiatric/counsellor reports, WhatsApp messages and Family Court orders suggesting the child expressed disinclination to visit the father and had displayed agitation in court interactions.

The record also contained evidence of alleged obstruction by the mother to visitation and concerns about the father’s quality of engagement, raising a mixed factual picture where both parental conduct and the child’s preference were material. The central factual tension is between alleged obstruction of access by the mother and the child’s expressed unwillingness to continue visits, potentially influenced by parental conduct.

E) LEGAL ISSUES RAISED

1. Can an execution petition to enforce a custody clause in a divorce decree proceed independently while an application to modify that decree is pending?

2. What is the proper interplay between execution remedy and custody-modification procedure under family law?

3. What interim regime should a superior court frame, balancing non-prejudice to pending modification and the child’s right to maintain contact with both parents?

4. When may coercive measures be directed for non-compliance with visitation ordered under a consent decree?

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsel for the appellant (father) submitted that:

• The minor requires love and affection of both parents; execution should be available to enforce the consent decree so that parental contact is not extinguished by obstruction.

• The child enjoyed the father’s company and the mother’s actions caused estrangement; prompt execution was necessary to prevent permanent alienation.

• Reliance on Amyra Dwivedi (Minor) v. Abhinav Dwivedi to stress courts should protect a child’s right to parental contact and shape visitation.

• The High Court erred in remanding the matter rather than directing immediate compliance with the decree and implementing enforcement measures.

G) RESPONDENT’S ARGUMENTS

The counsel for the respondent (mother) submitted that:

• Custody-related issues require the specialized mechanism under the Guardians and Wards Act, 1890, and cannot be short-circuited via an execution petition.

• The child was unhappy and traumatized by visits; the modification petition sought to address the child’s welfare and therefore must be decided before enforcement.

• Reliance on Nil Ratan Kundu v. Abhijit Kundu to underscore that custody decisions require parens patriae consideration and cannot be determined solely by execution procedure.

H) RELATED LEGAL PROVISIONS 

• Section 13-B, Hindu Marriage Act, 1955 — divorce by mutual consent procedure and decree.

• Section 26, Hindu Marriage Act, 1955 — power to make interim and final orders regarding custody, maintenance and education and to alter decree upon application.

• Guardians and Wards Act, 1890 — scheme for custody/guardianship and fact-sensitive welfare inquiries.

• Doctrine of parens patriae — court’s overriding duty to act for welfare of minors.

• Principles from best interest of the child jurisprudence (SCC precedents: Yashita Sahu; Amyra Dwivedi; Nil Ratan Kundu; Nithya Anand Raghavan).

I) JUDGEMENT 

The Supreme Court declined to interfere with the High Court’s decision to remit the execution and modification petitions to the Family Court for fresh adjudication because the remand aligned with procedural propriety: custody modification implicates welfare inquiries that cannot be conclusively resolved in execution proceedings. The Court emphasised that custody matters are not ordinary decree-enforcement matters and require careful exercise of parens patriae jurisdiction; precedent instructs that the child’s comfort, health, education and moral values must guide decision-making.

Nevertheless, recognising that prolonged non-contact risks irretrievable damage to the parental relationship, the Court fashioned a narrowly tailored interim order: until the Family Court disposes both petitions (to be concluded expeditiously and within three months), the father shall have visitation rights every Sunday from 04:00 PM to 06:00 PM; the child will attend accompanied by his caretaker who will remain on the premises but not in the child’s immediate company; the child will return at 06:00 PM. If the father lacks permanent accommodation in that city he may give hotel details in advance.

The Court made clear it gave no opinion on the merits and that the interim arrangement is temporary. The Court further warned that if the mother obstructs implementation, the father may approach the Supreme Court for appropriate coercive relief including consequences in law. The Court balanced procedural correctness and immediate welfare needs, citing earlier decisions that a child’s contact with both parents is a human right and must be preserved unless extreme circumstances exist.

a. RATIO DECIDENDI

The controlling ratio is twofold:

(i) custody modification applications and execution petitions touching custody cannot be conflated; courts must allow the designated trial forum (Family Court) to examine modification applications afresh because custody is not merely a civil debt-like right but a welfare-centric determination under Section 26 and guardianship principles; and

(ii) however, the court exercising supervisory jurisdiction must protect the child’s right to maintain contact with both parents during pendency therefore, limited, concrete interim visitation orders may be necessary to avoid total deprivation of parental contact.

The Court placed primacy on the best interest of the child principle explicitly adopting the guidance in Nil Ratan Kundu and Yashita Sahu and held that while execution is a remedy to enforce decrees, its application here is qualified by the nature of custody rights and the court’s parens patriae duty.

b. OBITER DICTA

The Court obiterly observed that:

(i) execution machinery cannot be misused to decide contested custody questions that require fact-sensitive welfare assessments;

(ii) courts should, when framing visitation, describe nature, manner and specifics so that implementation is practicable (citing Yashita Sahu);

(iii) evidence placed before superior courts (psychiatric reports, communications) must be carefully evaluated by the trial court rather than being determinative at interlocutory stages; and

(iv) non-compliance with visitation under a consent decree may attract coercive measures but such steps should be ordered after due enquiry so as not to harm the child’s stability.

c. GUIDELINES

• Courts hearing custody/execution-modification disputes must:

  • First, recognise custodial rights implicate parens patriae and the best interest standard.

  • Second, avoid deciding core custody modifications via execution proceedings; remand for trial-level fact-finding where required.

  • Third, fashion specific interim arrangements (time, place, supervising person) so implementation is feasible and emotionally safe for the child.

  • Fourth, limit interim relief to what is necessary to preserve parental contact and avoid destabilising the child.

  • Fifth, set firm but reasonable timetables (here: disposal within three months) to prevent protracted uncertainty.

  • Sixth, provide for consequences and supervisory recourse if interim orders are obstructed, but ensure coercive steps consider child welfare.

J) CONCLUSION & COMMENTS

The Supreme Court’s approach is pragmatic and child-centred: it declined to undermine procedural correctness by resurrecting enforcement when modification required adjudication, yet it refused to permit a parental blanking-out of the father’s relationship with the child. The interim visitation order is narrow, practical and protective it minimises disruption by limiting duration, mandating a caretaker, and prescribing logistics so that the child’s emotional needs are not subordinated to parental disputes.

The judgment underscores several settled principles: custody is governed by welfare of child not technical execution; child’s preference must be weighed when formed intelligently; and courts must give specific directions for visitation. For practitioners, the case is a caution against using execution petitions to litigate custody merits and a reminder to frame clear consent terms at the decree stage.

For trial courts, the ruling is a template to harmonise enforcement with welfare-sensitive fact-finding: expedite hearings, scrutinise extra-record material (psych reports) at trial, and avoid open-ended pendency. Finally, the Court’s warning about consequences for obstruction signals that superior forums will intervene to preserve parental contact where one parent seeks to nullify the decree by non-compliance. The balance struck is defensible: it preserves the sanctity of trial-level welfare inquiry while ensuring the child does not become a casualty of procedural delay.

K) REFERENCES

a. Important Cases Referred

1. Kiran Raju Penumacha v. Tejuswini Chowdhury, Civil Appeal No. 3842 of 2025, Supreme Court of India, judgment dated Mar. 17, 2025, [2025] 3 S.C.R. 802 : 2025 INSC 358.

2. Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67.

3. Amyra Dwivedi (Minor) through her mother, Pooja Sharma Dwivedi v. Abhinav Dwivedi, (2021) 4 SCC 698.

4. Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.

5. Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.

b. Important Statutes Referred

1. Hindu Marriage Act, 1955 (Sections 13-B, 26).

2. Guardians and Wards Act, 1890.