Kerala High Court: In a petition filed at the instance of a mother challenging order passed by Family Court allowing custody of minor child to the father, the Division Bench of A. Muhamed Mustaque and Sophy Thomas, JJ. found cyclical custody to be in the best interest of both child and parents.
The Family Court allowed custody of their 3.5-year-old boy to the father, who already had the elder child, who was totally blind, already with him. According to the mother, strained relationship and domestic violence forced her to leave the matrimonial home, while the father alleged that the mother eloped with another person.
The Family Court concluded that the mother eloped with another person for pleasure and her choice of such a wayward life would prejudice the children’s welfare.
The Court in the instant matter was disturbed by the language used by the Family Court. It expressed that “Merely because a woman is found in the company of another male, Family Court concluded 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.”
The Court left scope for circumstances when a person may have to leave the matrimonial home, and that a woman being found with another person cannot lead to the assumption that she went for pleasure. The Court was cautious that such moral judgment would defeat the purpose of inquiry in child custody matters, which particularly concentrates on the welfare aspect.
The Court said that “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 considered the mother’s care for child being adored in our country for her care of the child in the mother’s womb for 9 months, who is familiar with the pain and suffering of delivery. It further pointed towards the Court’s duty to examine the extent to which a child is protected in the custody of a mother or father. The Court commented that the mother may be bad for the father or vice versa, but she can be good for her child and such matters have to be analyzed by the Courts after adducing evidence.
The Court viewed that cyclical custody would be in the best interest of children and parents. The Court gave custody to the mother on alternate Friday at 5 pm till the next Friday at 5 pm, and it was further ordered that the child should be handed over and returned from the Family Court premises.
[Aneesa F. v. Shefeekmon K.I, 2023 SCC OnLine Ker 4240, decided on 08-06-2023]
Judgment by: Justice A. Muhamed Mustaque
Advocates who appeared in this case :
For Petitioner: Advocate K.S. Hariharaputhran;
For Respondent: Advocate Jose Antony, Advocate K. Najeeb.