Kochi: The Kerala High Court on Tuesday observed that though a mother may be ‘morally bad in the societal sense’, it does not indicate that she is bad for the child's welfare. It held that in matters of child custody, the welfare of the child alone is to be considered.

A division bench comprising Justice Muhamed Mustaque and Justice Sophy Thomas observed.

“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 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 court was considering a plea by a mother challenging the order of the family court that granted custody of the child to the father. According to the woman, she left her matrimonial home due to domestic violence. However, her husband argued that the woman left with her brother’s friend to make it appear like she had eloped with someone and sever marital ties.

Ruling in favour of the father, the family court had concluded that the mother had eloped with another person for pleasure and her wayward life would prejudice the welfare of the children. Strongly criticizing the view taken by the family court in making a moral judgment against the mother and hence denying her custody of her child, the court said:

“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.

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 court decided to grant cyclical custody to both parents keeping in mind the best interest of the child:

“The mother's care for a child is being adored in this country for the reason that the mother took care of the child in her womb for nine months and she knows the pain and sufferings of delivery. 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.”

(With inputs from LiveLaw)