"A man or woman may be bad for someone in a contextual relationship, that does not necessarily mean that the person is bad for his/her child. 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," a Kerala High Court Bench has opined in a matter of custody of child.
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Earlier this month, the Kerala High Court berated a family court judge for using 'distasteful' language regarding a woman to the effect that she was found in the company of another male, and that she went for pleasure with that person. The family court judge made these observations while directing custody of a minor child, a three-and-half-years-old boy, to his father.
Taking strong exception to the language used by the family court judge, the division Bench of the high court which comprised Justices A. Muhamed Mustaque and Sophy Thomas said that the highly distasteful language depicts the mindset of an officer of high rank in the district judiciary adding that merely because a woman is found with another person, it cannot lead to an assumption that she went to him for pleasure.
"The moral judgment reflected in such orders would defeat the objective of inquiry in the matters of child custody," the Bench said.
The Bench was ruling on a petition filed by the mother challenging the decision of the family court which allowed the custody of her child to the father.
The judgment recorded that the strained relationship apparently forced the mother to leave the matrimonial home (according to her version).
The husband's version was that his wife eloped with another person.
On the contrary, the wife contended that due to domestic violence, she was forced to leave the matrimonial home.
The family court placed reliance on the first information report (FIR) and the sworn statement given by the mother before the magistrate arrived at a conclusion that she had eloped with another person for pleasure and that the wayward life chosen by her would prejudice the welfare of the children.
The high court Bench said it was not believing either of the stories put forward before them but what had disturbed them was the language used by the family court judge.
The Bench said in a matter related to the child's custody, the welfare aspect alone has to be considered first.
"A man or woman may be bad for someone in a contextual relationship, that does not necessarily mean that the person is bad for his/her child. 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 Bench opined adding that 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.
Speaking of the role of the mother, the Bench observed that the mother's care for a child is adored in this country for the reason that she takes care of the child in her womb for nine months and she knows the pain and suffering of delivering a child.
"The court will have to examine how far the child is protected when custody is given to the mother or the father. The mother may be bad for the father or vice versa but the mother can be good for her child. These are all matters to be analysed after adducing evidence," the Bench said.
On the facts of the case, the Bench ruled that that cyclical custody to parents would be in the best interest of both. It thus directed that the custody of the child be given to the mother on alternate Fridays while quashing the Order of the family court.