Holding

The execution petition cannot proceed independently; both the execution and modification petitions must be considered together, with interim visitation rights ordered pending final determination.

Summary

The appellant-father and respondent-mother obtained a mutual consent divorce, with the mother given permanent custody of their son and the father granted interim weekend custody. The father later filed an execution petition to enforce the decree, while the mother filed an application seeking modification of the interim custody arrangement. The High Court set aside the execution order and remanded the matter to the Family Court to decide both petitions afresh. The Supreme Court was asked to determine whether the execution petition could proceed independently of the pending modification petition. Relying on the best‑interest‑of‑the‑child principle and precedents emphasizing parental affection, the Court held that the execution petition should not be allowed to run to judgment while the modification petition remains pending, and ordered interim visitation rights for the father. The matter was remanded to the Family Court with directions for a swift final determination and the appeal was disposed of.

Issues considered

Whether the execution petition for enforcing the custody decree should be heard and decided independently of the pending modification petition filed by the mother
Whether the execution petition may proceed irrespective of the pendency of the modification petition

Legislation cited

Guardians and Wards Act, 1890
Hindu Marriage Act, 1956s. 13-B, s. 26

Headnote

Issue for Consideration Whether the petition for modification of the decree regarding the custody of the child filed by the respondent-mother and the execution petition filed by the appellant-father should be heard together or whether the execution petition should proceed irrespective of the Headnotes† Hindu Marriage Act – ss.13-B, 26 – Appellant-father and respondent-mother of a minor child got divorce by mutual consent – Respondent-mother was granted the permanent custody of the minor son and the appellant-father was granted interim custody during the

Subjects

Modification of DecreeExecution PetitionCustody of ChildInterim CustodyPermanent CustodyWelfare and Well-being of the ChildBest Interest of the ChildParens Patriae JurisdictionGuardian of MinorPhysical ComfortsMoral & Ethical ValuesChild's InclinationVisitation RightsHearing TogetherRemandMutual Consent Divorce

Judgment

[2025] 3 S.C.R. 802 : 2025 INSC 358

Kiran Raju Penumacha
v.
Tejuswini Chowdhury
(Civil Appeal No. 3842 of 2025)
17 March 2025
[Sudhanshu Dhulia and
Ahsanuddin Amanullah,* JJ.]

Issue for Consideration
Whether the petition for modification of the decree regarding the
custody of the child filed by the respondent-mother and the execution
petition filed by the appellant-father should be heard together or
whether the execution petition should proceed irrespective of the
pendency of the modification petition.

Headnotes†
Hindu Marriage Act – ss.13-B, 26 – Appellant-father and
respondent-mother of a minor child got divorce by mutual
consent – Respondent-mother was granted the permanent
custody of the minor son and the appellant-father was
granted interim custody during the weekends – The appellant
alleges that respondent terminated all contacts between
him and his son – Appellant filed E.P. No.7 of 2023 in O.P.
No.421 of 2021 before the Family Court – The Family Court
passed various orders directing respondent to send the
minor son to appellant for the weekends – In response to
which, respondent filed application in O.P. No.421 of 2021
and sought modification of decree pertaining to interim
custody of the minor son during weekends with appellant –
The Family Court allowed E.P. No.7 of 2023 and appointed
advocate commissioner to execute decree – The said
order was challenged by the respondent before the High
Court – The High Court remanded the matter back to the
Family Court with a direction to decide E.P. No.7 of 2023

* Author
[2025] 3 S.C.R. 803

Kiran Raju Penumacha v. Tejuswini Chowdhury

afresh and I.A. No.865 of 2023 strictly in accordance with
law – Correctness:
Held: The matter needs fresh consideration – The impugned
Judgment is not interdicted – During the interregnum period, the
father cannot be totally deprived of the company of the minor son –
Taking a cue from the various interim orders passed by the Family
Court relating to the modalities of the custody of the minor son, it
is directed that till the time the Trial Court decides the modification
petition and the execution petition filed by appellant, the father
would have visitation rights from 04:00 PM to 06:00 PM on every
Sunday – The matter is remanded back to the Family Court with a
direction to conclude the matter expeditiously – If the respondent-
mother were to obstruct the implementation of the arrangement in
any manner whatsoever, it will be open for the appellant-father to
apprise this Court of the same – In such eventuality, necessary
consequences in law, including coercive measures, would follow.
[Paras 16, 18, 19]

Case Law Cited
Yashita Sahu v. State of Rajasthan [2020] 1 SCR 417 : (2020) 3
SCC 67 – relied on.
Amyra Dwivedi (Minor) through her mother, Pooja Sharma
Dwivedi v. Abhinav Dwivedi [2020] 4 SCR 687 : (2021) 4 SCC 698;
Nil Ratan Kundu v. Abhijit Kundu [2008] 11 SCR 1111 : (2008) 9
SCC 413; Nithya Anand Raghavan v. State (NCT of Delhi) [2017]
7 SCR 281 : (2017) 8 SCC 454 – referred to.

List of Acts
Hindu Marriage Act, 1956.

List of Keywords
Modification of Decree; Execution Petition; Custody of Child;
Interim Custody; Permanent Custody; Welfare and Well-being of
the Child; Best Interest of the Child; Parens Patriae Jurisdiction;
Guardian of Minor; Physical Comforts; Moral & Ethical Values;
Child's Inclination; Visitation Rights; Hearing Together; Remand;
Mutual Consent Divorce.
804 [2025] 3 S.C.R.

Supreme Court Reports

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3842 of 2025
From the Judgment and Order dated 13.03.2024 of the High Court
for the State of Telangana at Hyderabad in F.C.A. No. 19 of 2024

Appearances for Parties
Advs. for the Appellant:
Mukul Rohtagi, Sr. Adv., Raavi Yogesh Venkata, Ms. Twinkle Rathi,
Kotte Venkata Pawan Kumar, Ms. Thithiksha Padmam.
Advs. for the Respondent:
Kapil Sibal, Sr. Adv., Abhik C., Karan Kapoor, Pranjal Abrol,
Vikramaditya Chauhan, Abhishek Gautam, Nikhil Parikshith.

Judgment / Order of the Supreme Court

Judgment

Ahsanuddin Amanullah, J.

Leave granted.
2. This appeal has been preferred by the Appellant against the Final
Judgment and Order dated 13.03.2024 in Family Court Appeal No.19
of 2024 (hereinafter referred to as the ‘Impugned Judgment’) passed
by a Division Bench of the High Court of Telangana at Hyderabad
(hereinafter referred to as the ‘High Court’), by which the appeal
filed by the Respondent has been allowed setting aside the order
dated 19.01.2024 of the Principal Family Court-cum-XIII Additional
Metropolitan Sessions Judge, Hyderabad in Execution Petition
(hereinafter referred to as ‘E.P.’) No.7 of 2023 in O.P. No.421 of
2021 and remanding the matter to the learned Family Court with a
direction to decide E.P. No.7 of 2023 afresh and I.A. No.865 of 2023
strictly in accordance with law.

THE FACTUAL BACKDROP:
3. The Appellant-father and the Respondent-mother were married as
per Hindu rites and rituals on 15.04.2012 and a male child was
born to the couple on 11.08.2014. Disputes arose between the
parties that ultimately led to them living separately. During this time,
[2025] 3 S.C.R. 805

Kiran Raju Penumacha v. Tejuswini Chowdhury

the Respondent-mother had the physical custody of their minor
son. On 23.02.2021, the parties filed O.P No.421 of 2021 under
Sections 13-B1 and 262 of the Hindu Marriage Act, 1955 before
the Principal Judge, Family Court-cum- Addl. Chief Judge, City
Civil Court, at Hyderabad (hereinafter referred to as the ‘Family
Court’) seeking divorce by mutual consent and custody for minor
son. The Family Court allowed the divorce petition on 02.09.2021
and granted a decree of divorce by mutual consent and held that
the Respondent-mother would have permanent custody of the
minor son, and the Appellant-father would have interim custody
during the weekends.
4. The Appellant alleges that, sometime in 2021, despite everything
going extremely smoothly, the Respondent terminated all contacts
between the son and the Appellant-father, despite several efforts on
his part. Thus, on 06.02.2023, the Appellant was compelled to file
E. P. No.7 of 2023 in O.P No.421 of 2021 before the Family Court
seeking the appointment of an Advocate Commissioner to implement
the Decree dated 02.09.2021. During the pendency of the E.P., the
Family Court passed various orders, directing the Respondent to
send the minor son to the Appellant for the weekends. The Family
Court on 19.07.2023 passed an order directing the Respondent to
permit video calls between the Appellant and the minor son every

1 ‘13-B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of
marriage by a decree of divorce may be presented to the district court by both the parties to a marriage
together, whether such marriage was solemnized before or after the commencement of the Marriage
Laws (Amendment) Act, 1976, on the ground that they have been living separately for a period of one
year or more, that they have not been able to live together and that they have mutually agreed that the
marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation
of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the
petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and
after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments
in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from
the date of the decree.’
2 ‘26. Custody of children.—In any proceeding under this Act, the court may, from time to time, pass
such interim orders and, make such provisions in the decree as it may deem just and proper with respect
to the custody, maintenance and education of minor children, consistently with their wishes, wherever
possible, and may, alter the decree, upon application by petition for the purpose, make from time to time,
all such orders and provisions with respect to the custody, maintenance and education of such children
as might have been made by such decree or interim orders in case the proceeding for obtaining such
decree were still pending, and the court may, also from time to time revoke, suspend or vary any such
orders and provisions previously made:
Provided that the application with respect to the maintenance and education of the minor children,
pending the proceeding for obtaining such decree shall, as far as possible, be disposed of within sixty
days from the date of service of notice on the respondent.’
806 [2025] 3 S.C.R.

Supreme Court Reports

day for half an hour between 07.00 PM to 9.30 PM, but this was
also, contended the Appellant, violated after a few days.
5. On 03.10.2023, Respondent filed an application viz. I.A. No.865
of 2023 in O.P No.421 of 2021 before the Family Court, seeking
modification of the decree dated 02.09.2021 pertaining to interim
custody of the minor son during weekends to the Appellant.
6. The Family Court passed an Order dated 19.01.2024, allowing
E.P. No. 7 of 2023, and subsequently appointed an Advocate
Commissioner to execute the Decree dated 02.09.2021 in O.P
No.421 of 2021.
7. The order passed by Family Court dated 19.01.24 in E.P. No.7 of
2023 was challenged by the Respondent in Family Court Appeal
No.19 of 2024 before the High Court. On 13.03.2024, the High
Court, by way of the Impugned Judgment, allowed the appeal filed
by the Respondent and remanded the matter back to the Family
Court with a direction to decide E.P. No.7 of 2023 and I.A. No.863
of 2023 afresh strictly in accordance with law within a period of one
month from the date of receipt of copy of the Impugned Judgment.

SUBMISSIONS BY THE APPELLANT:
8. The learned senior counsel for the Appellant submits that the High
Court ought to have considered that a minor child requires the love
and affection of both the parents, and the mere fact of divorce should
not mean that the child is deprived of being taken care of by both
parents. Learned counsel relied on Amyra Dwivedi (Minor) through
her mother, Pooja Sharma Dwivedi v Abhinav Dwivedi, (2021) 4
SCC 698. It was further submitted that the High Court ought to have
considered the fact that the minor child used to enjoy his father’s
company and it is only due to the Respondent’s tutoring that he later
started showing animosity towards the Appellant. This was evident
in the fact that the child became increasingly more agitated during
Court visits. In sum, it was submitted that the High Court had erred
in law and in fact, and interference by this Court was required.

SUBMISSIONS BY THE RESPONDENT:
9. The learned senior counsel for the Respondent submitted that the
child was unhappy with the Appellant for not spending enough time
[2025] 3 S.C.R. 807

Kiran Raju Penumacha v. Tejuswini Chowdhury

with him during the visitations. The Appellant’s lack of interest is also
evident in the video calls with his minor son, in which he constantly
blamed the child for the entire situation, leaving him traumatized.
Even in the Interim Order dated 17.11.2023 of the Family Court, it
was recorded that the child was unhappy with the fact that his father
and grandfather do not take care of him and that his father would
be busy with his friends and that only his grandmother and one of
the staff members of the Appellant take care of him.
10. Learned counsel further submitted that appellant cannot raise issues
with regard to the custody of the child in an execution petition and the
mechanism for custody-related rights is prescribed in The Guardians
and Wards Act, 1890 and relied on the judgment of this court in
Nil Ratan Kundu v Abhijit Kundu, 2008 (9) SCC 413. It was urged
that no interference was called for with the Impugned Judgment.

ANALYSIS, REASONING AND CONCLUSION:
11. We may start of by noting that the entire/detailed submissions of the
parties have not been recorded for the reason that they have delved
into the main merits of the matter. However, the issue before us is in
a very narrow compass i.e., whether the petition for modification of
the decree regarding the custody of the child filed by the Respondent-
mother and the execution petition filed by the Appellant-father should
be heard together or whether the execution petition should proceed
irrespective of the pendency of the modification petition.
12. It is also relevant to point out that a huge bunch of additional material
has been placed by both parties during the pendency of the matter
in this Court. Such material includes, but is not limited to emails,
WhatsApp messages, Psychiatrist/Counsellor reports and various
orders of Family Court. The picture that emerges, were we to attempt
to conjure one, taking a gist of the additional material in its entirety,
is that the minor son of the parties during interactions, several times
with the Courts, has stated that he was dis-inclined to even meet/visit
the father and did not want to remain with him physically because of
the Appellant-father not giving him sufficient time/attention.
13. The Appellant-father holds the Respondent-mother responsible for
such stand taken by the minor son. While this may or may not be
entirely true, the Respondent-mother has, at times, attempted to stall
a fruitful visit/interaction of the minor son with the Appellant-father.
808 [2025] 3 S.C.R.

Supreme Court Reports

Yet, the consistent stand of the minor son is that he is disturbed by
the visits to his appellant-father and does not want to continue with
the same.
14. If this matter had been one of a simple case for the execution of an
ordinary decree in favour of a party, the obvious course for us to adopt
would perhaps have been to direct to proceed for execution, without
waiting for the other side’s modification petition to be decided. But, in
the present lis, the issue relates to the life of a minor child who has
still not attained maturity himself and is not in a position to decide
what is best for him. Thus, the responsibility for him is also on the
Court which is seized of the matter. The Court has to be extremely
careful in taking a considered view, such that the interests of the
minor child are adequately safeguarded.
15. In Nil Ratan Kundu (supra), it was stated that ‘… in deciding a
difficult and complex question as to the custody of a minor, a court
of law should keep in mind the relevant statutes and the rights
flowing therefrom. But such cases cannot be decided solely by
interpreting legal provisions. It is a human problem and is required
to be solved with human touch. A court while dealing with custody
cases, is neither bound by statutes nor by strict rules of evidence
or procedure nor by precedents. In selecting proper guardian of a
minor, the paramount consideration should be the welfare and well-
being of the child. In selecting a guardian, the court is exercising
parens patriae jurisdiction and is expected, nay bound, to give due
weight to a child’s ordinary comfort, contentment, health, education,
intellectual development and favourable surroundings. But over
and above physical comforts, moral and ethical values cannot be
ignored. They are equally, or we may say, even more important,
essential and indispensable considerations. If the minor is old
enough to form an intelligent preference or judgment, the court
must consider such preference as well, though the final decision
should rest with the court as to what is conducive to the welfare of
the minor.’ Albeit in a different factual backdrop, the ‘best interest
of the child’ principle has also been elucidated in Nithya Anand
Raghavan v State (NCT of Delhi), (2017) 8 SCC 454. In Yashita
Sahu v State of Rajasthan, (2020) 3 SCC 67, this Court held
that the welfare of the child is paramount in matters relating to
custody. In this context, we may refer to Para 22 thereof, which
reads as follows:
[2025] 3 S.C.R. 809

Kiran Raju Penumacha v. Tejuswini Chowdhury

‘22. A child, especially a child of tender years requires the
love, affection, company, protection of both parents. This
is not only the requirement of the child but is his/her basic
human right. Just because the parents are at war with each
other, does not mean that the child should be denied the
care, affection, love or protection of any one of the two
parents. A child is not an inanimate object which can be
tossed from one parent to the other. Every separation,
every reunion may have a traumatic and psychosomatic
impact on the child. Therefore, it is to be ensured that the
court weighs each and every circumstance very carefully
before deciding how and in what matter the custody of the
child should be shared between both the parents. Even if
the custody is given to one parent the other parent must
have sufficient visitation rights to ensure that the child keeps
in touch with the other parent and does not lose social,
physical and psychological contact with any one of the two
parents. It is only in extreme circumstances that one parent
should be denied contact with the child. Reasons must be
assigned if one parent is to be denied any visitation rights
or contact with the child. Courts dealing with the custody
matters must while deciding issues of custody clearly define
the nature, manner and specifics of the visitation rights.’
(emphasis supplied)

16. There is a lot to be said about the conduct of the Respondent-
mother who clearly attempts to prevent/obstruct/stop the visitation
rights granted to the Appellant-father, that too pursuant to a consent
decree between the parties. We were seriously contemplating to
direct immediate compliance with the already existing decree before
the Respondent’s petition for modification of the original decree was
heard and decided. However, being conscious of the fact that we are
also in the parens patriae jurisdiction, and even interim arrangements
could have a negative effect on the tender and fragile frame of the
mind of the minor son, we ultimately find that the matter needs fresh
consideration. The Impugned Judgment is thus, not interdicted.
However, we hasten to add that during the interregnum period, the
father cannot be totally deprived of the company of the minor son.
Taking a cue from the various interim orders passed by the Family
810 [2025] 3 S.C.R.

Supreme Court Reports

Court relating to the modalities of the custody of the minor son, we
direct that till the time the Trial Court decides the modification petition
and the execution petition filed by Appellant, the father would have
visitation rights from 04:00 PM to 06:00 PM on every Sunday. The
son will go with his caretaker to the house of the Appellant-father,
where the caretaker would remain present in the premises, but
not in the immediate company of the Appellant-father or the family
members of the Appellant or the minor son. The minor son would
return to the Respondent-mother at 06:00 PM with the caretaker.
17. We direct that the Respondent-mother would send the child to the
Appellant-father such that he reaches the house of the Appellant-
father by 04:00 PM on every Sunday, along with the caretaker and
pick him back after 06:00 PM. We further clarify that such visitation
rights shall be at the place/city, where the minor son resides. If the
father is not having permanent accommodation in that city, he shall
intimate the mother of the hotel where he would be during such
visitation. On receipt of the above intimation, the above arrangement
will be scrupulously followed.
18. The matter is remanded back to the Family Court with a direction
to conclude the matter expeditiously and latest within three months
from the date of communication of the present judgment.
19. The parties are directed to cooperate. We may add that if the
Respondent-mother were to obstruct the implementation of the
arrangement in any manner whatsoever, it will be open for the
Appellant-father to apprise this Court of the same. In such eventuality,
necessary consequences in law, including coercive measures, would
follow. It is made clear that we have not expressed any opinion on
the merits of the matter and even the interim arrangement supra
is intended to operate till the Family Court takes a final call on the
modification and execution petitions.
20. The appeal is disposed of accordingly.
21. Pending applications shall stand disposed of.

Result of the case: Appeal disposed of.

†
Headnotes prepared by: Ankit Gyan