Custody decisions must prioritize children's welfare, and reliance on untested agreements is insufficient.

JUDGMENT Devan Ramachandran, J.

The petitioner challenges Ext.P3 order of the learned Family Court, Thiruvalla, in IA No.1/2025 in OP(G&W)No.539/2025 because, she had been given custody over her children only during the weekends.

2. Smt.Lekshmi S.Nair – learned counsel for the petitioner, argued that no cogent reason had engaged the attention of the learned Family Court, to have denied her client the request for interim custody of her children, but to be confined only to weekends; and hence that the impugned order is in error.

3. Smt.Swapna Vijayan – learned counsel for the respondent, on the other hand, submitted that the learned Family Court has correctly relied upon an Agreement between the parties, wherein, the permanent custody of the children has been handed over by the petitioner to the respondent. She argued that, when such an Agreement is in force, the petitioner could not have approached this Court to challenge Ext.P3, because the said order is edificed exclusively on its terms.

4. Even when we hear Smt.Swapna Vijayan on the afore lines, we are cognizant that the parties had earlier filed a joint petition for divorce, which had been then allowed; however, concededly, the order of the learned Family Court, so granting divorce, does not mention anything about the custody of the children.

5. Pertinently, it is the argument of Smt.Swapan Vijayan that the Agreement between the parties – which is produced on record as Ext.A3 – had been noticed by the learned Family Court and accepted. However, the order of the learned Family Court – a copy of which has been handed over across the Bar by Smt.Swapna Vijayan – does not mention any such, but granted divorce to the parties based on mutual consent.

6. Smt.Lekshmi S.Nair – learned counsel for the petitioner, in response, submitted that Ext.A3 is not a document that her client had agreed to and that the terms mentioned therein are not, therefore, binding on her. She submitted that, since that said document has not been tested before any judicial Forum, the learned Court ought not to have relied upon the same.

7. We see from the pleadings and evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that they can be relied upon by us, in delivering this judgment – there is hardly any specific reason found by the learned Court in granting only weekend custody of the children to the petitioner - mother.

8. As rightly argued by the learned counsel on both sides, the learned Family Court has relied upon Ext.A3 as if it is a document approved in law, or conceded by both the parties. When neither of these becomes discernible from the pleadings and evidence, we are certain that the learned Court ought not to have relied upon Ext.A3.

9. Therefore, dehors Ext.A3, all which the Court could have verified was the welfare of the children.

10. The parties were present before us today, along with the children; and we saw that the latter went with their mother without any reluctance. Obviously, the children have equal affection for their father and mother; in fact, they have left from this Court along with their mother.

11. We, therefore, put it to the learned counsel for the parties whether an arrangement between them could be thought of; and we are pleased that they reported to us, after some time, that the father agrees to be in interim custody of the children during the weekends, while, the mother can retain them during the weekdays. Both of them agree that the children will be handed by the mother to the father at 4 p.m. every Friday, until 4 p.m. the ensuing Sunday; and that th