The legal principle established affirms that child custody orders can be modified based on changes in circumstances, prioritizing the child's welfare above parental rights.

Raja Vijayaraghavan, J. This petition is filed challenging Ext.P23 order dated 2.11.2023 in O.P.(G & W) No.197/2018 on the files of the Family Court, Thalassery. The aforesaid petition has been filed by the respondent herein seeking to modify the order of the custody of the child in O.P. No.197/2018 on the files of the said court.

The above order was passed consequent to a compromise entered between the parties, requiring the mother to hand over the 3-year-old minor son of the petitioner to him on two Sundays in a month. After a period of one year from the date of order, the mother is to give custody of the child to the father on all Saturdays and Sundays.

2. The petitioner, after entering an appearance, challenged the very maintainability of the application.

According to him, seeking compliance with the directions issued based on a compromise decree dated 3.7.2018, the petitioner has been moving heaven and earth. All the attempts of the petitioner to seek execution of the order were scuttled by the mother by adopting one mode or the other.

To ensure compliance, the mother was arrested once and was released on self-bond.

He also highlighted the sequence of events from the commencement of proceedings to substantiate his contention that the attempt of the mother is to prevent the petitioner from having custody of the child as ordered under the compromise decree. It is stated that it is with a view to avoid the proceedings initiated against the respondent-mother for violation of the compromise decree that this application has been filed to protract the matter.

3. The respondent countered the contentions and pointed out that the child is suffering from various ailments including Attention Deficit/Hyperactivity Disorder. The child is undergoing behavioral therapy in order to ascertain the reasons for his mood swings.

She has also produced certain medical records from various hospitals to substantiate her contention.

4. The learned Family Court considered the objections raised by the petitioner and was of the view that in a petition for custody of children, the order passed initially cannot be said to be final. It was also held that it was open to any of the parties to the proceeding to approach the court and seek modification of the order if there is any change of circumstances. As far as the genuineness of the allegations is concerned, the same can be determined only after taking evidence.

Holding so, it was held that the application seeking modification was perfectly maintainable.

5. Sri. Praveen Joy, the learned counsel appearing for the petitioner submitted that the order passed by the Family Court cannot be sustained.

He would point out that though he was granted custodial rights, as per the compromise decree, he has not yet been handed over the custody of the child to date.

By allowing the application seeking modification, the Family Court was merely condoning the contumacious conduct of the respondent. It is further submitted that the Family Court ought to have exercised powers conferred under the Act and insisted on compliance with the compromise decree rather than allowing the application seeking modification.

6. In response, Sri. T.D.Susmith Kumar for the respondent submitted that in matters concerning custody of the child, the doctrine of res judicata would not be applicable. While determining the question, as regards custody of the child, the paramount consideration would be given to the welfare and interest of the child and not the rights of the parents under the statute.

7. We have carefully considered the submissions advanced.

This Court, by order dated 21.3.2024, directed the parties to be present in person along with the minor child.

In terms of the directions issued, the parties have appeared in person.

After interacting with the parties, we passed the following order, the relevant portion of which reads as under:

“4. During our interaction with the parties, we observed that the child displayed signs of distress and he was