​Mother Can’t be Disentitled of Child’s Custody Just Because She is Considered Morally Bad: Kerala High Court

The Kerala High Court recently observed that the ‘so-called’ morality is created by a society based on its own ethos and norms and should not necessarily reflect in a contextual relationship between a parent and child.

While stressing that in a matter related to the child’s custody, the welfare of the child alone must be considered first, a division bench of Justices A Muhamed Mustaque and Sophy Thomas said, “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 court added that a man or woman may be bad for someone in a contextual relationship, which does not necessarily mean that the person is bad for his/her child.

The court was dealing with a petition filed by a mother challenging an order passed by a family court allowing the custody of her three-and-a-half years old boy to the child’s father.

Before the family court, the petitioner had alleged that she had to leave her matrimonial home due to a strained relationship with her husband, however, the husband had claimed that she had eloped with another man.

The family court had concluded that the woman had eloped with another person for pleasure and that the wayward life chosen by her would prejudice the welfare of the child.

Aggrieved by the decision of the family court, the woman moved the high court.

The high court took serious note of the language used by the family court while passing the impugned order. “Merely for the reason that a woman 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 mindset of an officer of high rank in the district judiciary,” said the court.

The court emphasised that there may be many circumstances when one may have to leave the matrimonial home, so 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,” said the court.

While noting that the mother may be bad for the father or vice versa, but she can be good for her child, the high court allowed the child’s cyclical custody to both parents.