Kerala High Court: In a matrimonial appeal filed against the judgment of the Family Court denying themother custody of her children, the Division Bench of Devan Ramachandran* and M.B. Snehalatha, JJ., held that the findings of the Family Court not only perpetuate the notions of gender roles and patriarchy but also do not subscribe to the facts and evidence. Noting several flaws in the findings and decision of the Family Court, the Court set aside the impugned judgment and granted custody of the children to the mother.
Background
The mother and the respondent/ father divorced with mutual consent due to their several matrimonial disputes, including the dispute of custody of their children, currently aged 10 and 8. The several custody proceedings initiated by them were jointly tried and the Family Court delivered the impugned judgment wherein the wife was denied custody.
Analysis
The Court noted that in the impugned judgment, the Family Court had found the mother to be unworthy of custody, virtually concluding that she is a person of loose morals, as alleged by the husband. The Court further noted that this conclusion was arrived at by relying upon certain documents in evidence.
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S. No. |
Evidence in Question |
Family Court’s Findings |
High Court’s Findings |
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1. |
Transcripts or photographs of WhatsApp chats between the parties |
Family Court stated that the messages prove that the mother has used uncivil language against the father, thus making her unworthy of being a ‘lady’. |
The Court noted that these chats were produced as an attempt to show that the mother was not willing to take care of the children but when one reads every chat closely, there is no such indication, except that there was some bargain being urged by her and an attempt at give and take. The Court noted that it fails to understand how this could ever be construed by the Family Court to be a factor in holding the mother unworthy of the custody of the children. Regarding the language, the Court noted that there is one solitary instance, where the mother has referred to the father as a “dog” and demanded that he give her divorce. The Court stated that the Family Court did not visualize or realize the extreme strain in the relationship, which may have persuaded her to use that word in a fit of rage and frustration with being unable to obtain a divorce. The Court further noted that it is disturbing how the Family Court could conclude that the mother is habituated to such language even in her normal life when there is no evidence to this effect and any such conclusion is unwarranted and unnecessary. |
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2. |
An E-Mail sent by the mother, to an alleged “hacker” to break into the computer system of the father. |
The Family Court concluded that this email established that the mother is even capable of illegal action. |
The Court noted that the mother had testified that she was locked up by the father for over nine months and subjected to a great amount of cruelty; therefore, she contacted a person to hack into her husband’s computer system to ascertain what he had planned against her in the future. But no hacking was done or made possible. |
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3. |
A screenshot of an alleged dating app, Bumble, in which the mother is said to have posted her pictures. |
The Family Court found that this proves that she was looking for male company, particularly because she was wearing a “very revealing dress” in it. |
The Court noted that the Family Court has concluded – without any basis and incredulously – that the mother is a person of loose morals, particularly because she is wearing “revealing dresses”. The Court stated that apart from the fact that the photographs show her to be dressed in a very modest manner, covering herself fully and substantially, it fails to understand how the Family Court could have held that the site called ‘Bumble’ is a “Dating App”, and to suggest that she was looking for male friends. The Court further stated that 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 further noted that the Family Court failed to consider the uncontested testimony of the mother wherein she had stated that the profile was created by the father using her pictures. |
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4. |
Photographs, in which the mother is stated to be celebrating her divorce with her friends. |
The Family Court pejoratively found that a woman of virtue would never celebrate this, and ought to be sad. |
The Court noted that the holding of the Family Court, that a woman must always feel sad on obtaining divorce from her husband, exposes misogynistic prejudice and reinforces a very skewed gender stereotype, that a woman ought to be subdued, servile, and submissive. The Court stated that it cannot, in any manner – even in the wildest latitude – approve any such gender statement. The Court stated that in this case the mother had filed and obtained the divorce so she would feel happy and celebrate it with her close friends. The Court denounced these impressions and expressions as being wholly contrary to our constitutional conscience, particularly in the 21st century. The Court opined that the notion, that a woman should be happy only with marriage and feel sad about being divorced is so ineffable that it requires no further expatiation. |
Additionally, regarding the finding on the clothes of the mother, the Court opined that
“Though we cannot find the findings of the Family Court to be true even factually, we deem it necessary to remind that 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 woman makes, are that of her own choice, which cannot be subjected to moral policing or assessment, particularly by Courts; and in this regard, we must be circumspect that personal opinions do not even unwillingly enter judgments being conscious that we are all governed by one of the finest Constitutions of the world, which grants equal rights to all, without reference to gender. It is rather unfortunate that we have to make this observation and remind ourselves so, on a day we are celebrating the 75th anniversary of our great Constitution.”
The Court opined that
“In the heteronormative context, being feminine is construed as synonymous to being modest and even submissive; or, rather, that is how this term is more than often interpreted. Consciously or subconsciously, societies impose restrictions on women’s autonomy and scrutinize their choices; and they are supposed to adhere to certain standards, including in their sartorial choices and appearances. Such unwritten norms perpetuate casual sexism and strengthen the glass ceiling for women, with control being considered exclusive to men.”
“Unfortunately, through time, unwritten dress codes impact women throughout their lives. The sexualization and policing of women’s clothes, even from early school days, become active barriers to self-actualization and a full life.”
Considering the aforesaid, the Court stated that these findings perpetuate the notions of gender roles and patriarchy perhaps unwittingly and subconsciously and not deliberately. The Court further noted that apart from the findings being vulnerable to being thought of as misogynistic, many of them do not subscribe to the facts, as can be seen from the evidence. The Court further noted several flaws in the findings and decision of the Family Court.
The Court stated that in its interaction with the children, it was found that they unequivocally want to be with their mother permanently but want the company of their father during holidays. The Court further stated that the children are bright and articulate, with full command of what they want in life and from their parents.
The Court stated that it is enjoined to set aside the impugned order because courts cannot be suspected to be guilty of even borderline misogyny or sexism, and our constitutional mandate is that we decide matters as per its conscience and within its overriding umbra.
Noting the aforesaid, the Court denounced all the findings against the mother and set aside the impugned order thereby granting custody of the children to the mother and allowing the father to approach the Family Court for visitation or interim custody rights.
[X v. Y, Matrimonial Appeal No. 706 of 2024, decided on 26-11-2024]
*Judgment Authored by: Justice Devan Ramachandran
Advocates who appeared in this case :
For the petitioner: Advocate Jagan Abraham and Advocate M. George Jaison Antony
For the respondent: Senior Advocate S. Sreekumar and Advocate George Varghese
