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Synopsis

The Kerala High Court overturned a Family Court order that granted custody of two minor children to the father, citing the family court's unwarranted reliance on gender biases and patriarchal notions, including labelling the mother unworthy of custody for being a “person of loose morals.”

A Division bench comprising Justice Devan Ramachandran and Justice M.B. Snehalatha, was hearing a case which revolved around a dispute between divorced parents over the custody of their two children, aged 10 and 8. The Family Court, Mavelikkara, had earlier ruled in favour of the father, citing evidence that allegedly portrayed the mother as unfit for custody. These included photographs of the mother in “revealing dresses,”use of dating apps, interactions with male friends, and purportedly celebratory behaviour following the divorce. Additionally, allegations were made about the mother hiring a hacker and using uncivil language in messages to the father.

The mother contested these allegations and argued that the Family Court's reasoning was steeped in misogyny and irrelevant considerations, such as the mother’s clothing choices and social interactions, none of which demonstrated any adverse impact on the welfare of the children. It was highlighted that the children explicitly expressed their desire to live with their mother, which was not given due consideration by the family court.

The High Court found that the Family Court had failed to address core considerations of child welfare and instead based its decision on gendered assumptions. Condemning the Family Court for its “sexist and patriarchal” remarks, the court stated : “Such conclusions are unfortunately sexist in tenor, and lazed by archaic notions of patriarchy, especially when no one has a right to judge women by the manner in which she dresses, or by the choices of her manner of life.”

The court condemned the family court for its remarks on the mother’s clothing choices, stating: “Clothing is a form of self expression being part of an individual's identity, or an expression of general aesthetics. It is unpardonable and impermissible in any civilized society to judge a woman solely on the basis of her dress, or to thus conclude upon her virtue or her modesty, which surely can only be construed as being clothed by rigid notions of patriarchy. The sartorial preferences that a women makes, is that of her own choice, which cannot be subjected to moral policing or assessment, particularly by Courts.”

The High Court also rejected the family court's view that a woman “must always feel sad” after a divorce, observing: “We cannot, in any manner - even in wildest latitude - offer approval to any such gender statement;…We denounce these impressions and expressions as being wholly contrary to our constitutional conscience, particularly in the 21st century, when every woman marches on, with her head high, with her goals set and her resolve strong to attain it against all odds. The notion, that a women should be happy only with marriage and should feel sad on being divorced is, in our view, so ineffable that it requires no further expatiation.”

Conclusively, the court annulled the family court's decision and granted permanent custody of the children to the mother. It ruled that the Family Court’s reliance on moral judgments and gendered stereotypes was legally unsound and constitutionally impermissible.

 

Cause Title: XXX v. XXX [Mat. Appeal No. 706 of 2024]

Appearance: Counsel for the Appellant: Advocates Jagan Abraham M. George, Jaison Antony; and Counsel for the Respondent: Advocates George Varghese (Perumpallikuttiyil), S. Sreekumar (Sr.)