The child's expressed preference and comfort are paramount in custody arrangements, guiding the court's decision to modify interim custody despite no error in the original order.

JUDGMENT :

DEVAN RAMACHANDRAN, J.

The petitioner challenges Ext.P5 order of the learned Family Court, Ernakulam conceding that there is no error in it, but that her child is unwilling to stay with the father during the period when the latter has been granted the former’s interim custody, between 01.04.2025 and 25.04.2025.

2. Smt.Syama Mohan – learned counsel for the petitioner, submitted that, though her client has already given interim custody of the child to the father as ordered by the learned Family Court, he is unwilling to stay with him and has, in fact, even tried to escape. She thus reiteratingly prayed that Ext.P5 be set aside.

3. Sri.V.B.Unni Raja – learned counsel for the respondent, however, submitted that the child is not acting as per his own wishes, but appears to be tutored in the interaction he has with the mother even when he is in the interim custody of his client.

4. Before we move forward, we must record that the parties were before us today, along with the child. We interacted with the child, who unequivocally told us that he wants to return to the mother, not because he has any lack of affection for his father, but since he is more comfortable with the former. He offered that he will talk to the father and meet him at any time of his choice in future.

5. When we examine Ext.P5 order, it is evident that, what has been ordered therein is an interim arrangement of the child, pending Original Petition filed by the father seeking his permanent custody.

6. As per the order, the father is allowed interim custody of the son from 01.04.2025 to 25.04.2025.

7. However, the controversy has arisen because the son is reportedly not happy with the father as of now; and this is more or less confirmed in our interaction with him.

8. We, therefore, put it to the respondent – father, as to what he has to say to his son’s desire; to which, he responded saying that he would not act contrary to what he wants.

9. It is thus obvious that the child wants to return to the mother; and we propose to accede to it, not because we have found Ext.P5 to be in error, but only adverting to his desire and as agreed by the father.

In the afore circumstances, we allow this Original Petition and modify Ext.P5 in the following manner:

a) Though we have not found the interim arrangement of custody in favour of the father to be wrong, we permit the child to return to the mother, as he now expresses desire.

b) However, the father will be at liberty to talk to his son every day, through phone/WhatsApp (the number for which has been provided by mother to be 7907216809). We record the undertaking of the mother that she will facilitate this without any impediment.

c) Though the matter is pending before the learned Family court, we leave it to the parties to allow their son to choose where he wants to stay and for such period that he may require, so that the issues can be settled or resolved amicably, rather than by strife, which would not, in our firm view, be of any benefit to the child or to the parties.