Kerala HC Returns Child to Mother, Directs Family Courts to Follow Calcutta HC Child Custody Guidelines

A Division Bench led by Chief Justice Soumen Sen ordered a child's immediate return to his mother after the father removed him from school in breach of a Family Court custody decree, and directed all Family Courts in Kerala to follow Calcutta High Court child access and custody guidelines.

The High Court of Kerala at Ernakulam, in a habeas corpus petition filed by a mother whose minor child was taken from school by the father in defiance of a Family Court custody decree, ordered the child's custody to be handed over to the mother in open court on 1 June 2026. The Division Bench of Chief Justice Soumen Sen and Justice Syam Kumar V.M. found that the father had acted in breach of a compromise decree passed by the Family Court, Attingal, which granted permanent custody to the mother. Going beyond the immediate dispute, the Bench directed the Registrar General to circulate child access and custody guidelines approved by the Calcutta High Court to all District Judges, Family Courts, and Magistrates in Kerala exercising jurisdiction over custody and matrimonial matters.

The Dispute Before the High Court

Hayarunisa Abdul Hakkim, a 35-year-old resident of Kallambalam, Thiruvananthapuram, filed WP(Crl.) No. 820 of 2026 as the natural guardian of her minor child. Her case was that the Family Court, Attingal had passed a decree on 24 June 2025 in OP(G&W) No. 529 of 2025, granting her permanent custody of the child under a compromise arrangement that also provided the father with visitation rights.

Despite that decree, the father — the third respondent, Ajeeb — removed the child from school without informing the mother. The petition was filed on 24 May 2026. By that date, the child had been with the father for more than a month beyond a Family Court order dated 24 April 2026, which had directed that the child be returned to the mother after spending a few days with the father.

The mother sought a direction that the child be returned to her in terms of the Family Court decree. The Bench acknowledged that execution proceedings before the Family Court were an available remedy, but proceeded to hear the habeas corpus petition on its merits.

The Father's Contention and the Court's Assessment

The father contended that the child had complained about the mother during an interaction at school, and that this justified his retaining custody. Counsel for the father also drew the court's attention to an order in the pending execution application, which recorded that the father was not being allowed access to the child and that visitation rights under the compromise decree were being denied.

The Bench was not persuaded. It observed that even if there were circumstances warranting a change in custody arrangements, the father was required to file an application for modification of the compromise decree before the Family Court. He could not take the law into his own hands by removing the child from the mother's custody in violation of the decree.

The court also interacted independently with the child, the mother, and the father — and with the child in the presence of both parents separately. The child initially said he wished to go with the father, but the Bench found that statement did not appear to have been made in free will. The child clearly expressed a desire to be with the mother during the independent interaction.

On the April 2026 Family Court order, the Bench held that the father had acted in breach of the assurance given to the Family Court by failing to return the child to the mother within the time contemplated. The court described the situation in plain terms: “the child is being treated like a pawn in the hands of the parents.”

Calcutta High Court Guidelines Extended to Kerala Family Courts

The more far-reaching aspect of the judgment concerns child custody guidelines formulated with the participation of several stakeholders and approved by the Calcutta High Court on 23 September 2025 in WPA(P) No. 257 of 2021 (Ayushman Initiative for Child Rights) and WPA(P) No. 166 of 2022 (Antara). These guidelines address child access, child custody, and parental planning.

The Kerala Division Bench directed that these comprehensive guidelines be followed by Family Courts in Kerala on an interim basis — until a committee constituted to consider the plan has placed its final recommendations and until the Rule Committee frames and approves formal rules.

The Registrar General was directed to circulate the guidelines to all District Judges, Family Courts, and Magistrates in the State exercising jurisdiction in custody matters, matrimonial disputes, and proceedings under the Protection of Women from Domestic Violence Act, 2005.

The Bench also directed the Child Welfare Officer to file a social investigation report concerning the child in the pending execution proceedings before the Family Court, Attingal, to assist that court in passing appropriate orders.

Ring-Fencing the Family Court Proceedings

The Bench was careful to limit the reach of its observations. It made explicit that nothing in the judgment would influence the execution proceedings pending before the Family Court. The Family Court retains full authority to pass appropriate directions in those proceedings, including directions informed by the Calcutta High Court guidelines and the social investigation report.

The court also noted that mediation in a matrimonial dispute between the parties was pending. It expressed the hope that both parents would take an informed decision in those proceedings with the welfare of the child in mind.

The terms of the compromise decree, as they stand, were directed to be strictly followed by both parents.

Order

The Division Bench disposed of WP(Crl.) No. 820 of 2026 on 1 June 2026 with the following directions:

• The child, who was present in court, was handed over to the mother in court itself.
• The mother shall continue as the child's guardian unless and until the Family Court modifies its order.
• The Child Welfare Officer is directed to file a social investigation report in the pending execution proceedings before the Family Court, Attingal.
• The Registrar General is directed to circulate the Calcutta High Court child access and custody guidelines to all District Judges, Family Courts, and Magistrates in Kerala exercising jurisdiction over custody, matrimonial, and Domestic Violence Act matters, to be applied until formal rules are framed and approved.
• All terms of the compromise decree shall be strictly followed by both parents.
• Observations in the judgment shall not influence the pending execution proceedings before the Family Court.