Supreme Court Frames Standing Interim Access Regime For Overseas Father, Replaces "Apply Each Time" Requirement

A bench of Justices Vikram Nath and Sandeep Mehta heard an appeal that challenged the Kerala High Court’s refusal to set aside a Family Court interim-custody arrangement which compelled a non-custodial father to file a fresh interlocutory application each time he visited India for overnight access to his minor child. The appeal arose from an order of the High Court dated 23 August 2024 in O.P. (FC) No. 364 of 2024.

The Court allowed the appeal in part and substituted the Family Court’s “apply-each-time” regime with a structured interim access timetable sensitive to the child’s routine and the father’s overseas posting. The Court held that the previous arrangement “places an undue procedural burden on both the father and, by necessary implication, the minor child” and emphasised that “meaningful contact with both parents is an integral component for the child’s welfare.” The Court, in its reasoning, observed: "Having heard the counsels for both the parties and on perusing the record, we are persuaded that the arrangement devised by the Family Court, requiring the appellant to file a fresh IA on every visit to India, places an undue procedural burden on both the father and, by necessary implication, the minor child. Custody litigation at Family Court generally proceeds at a measured pace and compelling repetitive applications for what is, in essence, the same relief reduces the child’s time, exhausts the father’s limited leave, and invites avoidable conflict at every turn." The Court directed a standing interim schedule until final disposal of the custody petition or further order.

Background The parties married on 10 January 2016 and their daughter was born on 17 October 2017. After marital discord the mother left the matrimonial home with the child on 4 March 2023. The father, employed on rotational overseas assignments, instituted O.P. No. 1085 of 2023 in the Family Court, Ernakulam on 29 April 2023 seeking permanent custody and sought interim visitation. By order dated 21 September 2023 the Family Court permitted daily video interaction and one weekend of overnight custody, recording that “as and when the petitioner is available here, he may move necessary application for getting overnight custody.” Thereafter the Family Court required the father to file separate interlocutory applications on each visit; between September 2023 and May 2024 he obtained only 37 days of physical access.

The father petitioned the High Court under Article 227 for a definitive interim schedule; the High Court dismissed the petition but granted ad hoc interim custody for specified short periods (24–26 August 2024 and 14–17 September 2024). The Supreme Court mediation centre conducted sessions that did not produce agreement. The principal contest before the Court was whether repeated filings were justifiable pending trial, and whether a structured timetable balancing the child’s welfare with parental rights should govern interim access.

The Supreme Court accepted the father’s submissions that repeated IAs were impracticable, caused uncertainty and financial strain, and inhibited meaningful parental involvement given his overseas employment and payment of maintenance. The mother contended that she had been the child’s sole caregiver since March 2023 and that stability of routine should not be disrupted; she also urged that permanent arrangements should await trial.

The Court allowed the appeal in part and replaced the “apply-each-time” requirement with specific interim directions: (i) where the father was in India for at least seven consecutive days, custody from 10 a.m. on the first Saturday to 5 p.m. on the following Sunday, with alternate weekend entitlement if his stay extended; (ii) summer vacations to be divided into two contiguous equal segments, the first with the mother and the second with the father (the father’s non-presence would cause those days to lapse); (iii) festival vacations to be divided into two equal contiguous blocks, subject to pre-holiday consultation and summary Family Court resolution if parties did not agree; (iv) no taking of the child outside Kerala without written consent; (v) minimum video calls while the father was abroad; (vi) explicit direction that no fresh interlocutory applications would be required for subsequent visitation periods; (vii) a four-week e-mail notice requirement by the father and summary Family Court adjudication of scheduling disputes; and (viii) limited power for the Family Court to vary logistics but not quantum of access except on material change of circumstances. The Family Court was requested to adjudicate O.P. No. 1085 of 2023 expeditiously. Pending applications stood disposed of in terms of the directions.

Case Details: Case No.: 2025 INSC 709 (Arising out of SLP(C) No. 24419 of 2024) Case Title: Eby Cherian v. Jerema John Appearances: For the Petitioner(s): Ms. Shashi Kiran, Senior Counsel For the Respondent(s): (Counsel for respondent not specified in the judgment)