The Kerala High Court has strongly criticized a family court judge for using offensive language in an order granting sole custody of a minor child to the father.
A division bench consisting of Justice A Muhamed Mustaque and Justice Sophy Thomas observed that the family court judge had made derogatory remarks against the child’s mother. Specifically, the family court judge prematurely concluded that the mother had eloped with another person for personal pleasure and that her “wayward life” would negatively impact the children’s welfare.
The High Court expressed its disapproval of the language employed by the family court in its order.
“What has disturbed us is the language used by the Family Court Judge. Merely for the reason that a women is found in the company of another male, Family Court came to the conclusion that she went for pleasure with someone else. The highly distasteful language depicts the mind set of an officer of high rank in the district judiciary,” the bench noted.
The High Court was considering a plea filed by the mother of the child, who sought to challenge the decision of the family court. The father accused the mother of leaving the marital home to be with another man, while the mother asserted that she had to leave due to experiencing domestic violence. The division bench clarified that it neither intended to accept nor reject either version presented before the Court. The judges emphasized that the mere presence of a woman in the company of another man should not automatically lead to assumptions of an extramarital affair or make her an unfit mother.
“There may be many circumstances when one may have to leave the matrimonial home. If a woman is found with another person, it cannot lead to an assumption that she went for pleasure. The moral judgment reflected in such orders would defeat the objective of inquiry in the matters of child custody,” the order stated.
The bench reiterated that the primary consideration in child custody disputes should be the welfare of the child, rather than making moral judgments.
“A mother may be morally bad in the societal sense, but that mother may be good for the child as far as the welfare of the child is concerned. The so called morality is created by society based on their own ethos and norms and should not necessarily reflect in a contextual relationship between a parent and child,” the bench remarked.
In the present case, the Court determined that granting cyclical custody to both parents would serve the best interests of the child. Accordingly, the division bench set aside the family court’s order and instructed the parents to alternate caring for the child on a weekly basis.
