High Court condemns Sexist Judgment in Custody Dispute: 'A Woman’s dress cannot define her morality', Read Judgment

Kerala High Court Bench expounded that, “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."

This remark by the Kerala High Court came in response to a Family Court decision that denied a mother custody of her children based on sexist assumptions about her attire and emotional reaction to her divorce. The Court condemned these findings, highlighting the need to reject patriarchal biases in custody matters.

The appellant, a woman, sought custody of her two children following a divorce. The Family Court initially granted custody to the respondent, the father, based on the appellant’s attire and perceived behaviour. The Family Court made several controversial findings, including suggesting that the appellant’s dress indicated "loose morals" and that her emotional reaction to the divorce was improper. It also questioned her parenting ability due to a delay in presenting the children. The appellant appealed the decision, arguing that the Family Court’s conclusions were influenced by sexist and patriarchal views.

The appellant (petitioner) contended that the Family Court’s decision to deny her custody of the children was based on unjust and misogynistic reasoning. She argued that the Court wrongly judged her character based on her clothing, alleging that her attire was seen as a sign of "loose morals." The appellant emphasized that the Family Court's conclusions about her emotional reaction to the divorce and the use of language were distorted and failed to consider the strained relationship with her husband. She further argued that her actions, including contacting a hacker and delayed appearance with the children, were a result of the distress caused by the husband's behaviour, not an indication of unfitness for custody. She also highlighted the children's preference to live with her.

The Court expressed concern over the rigid gender roles and patriarchy influencing societal behaviour, stating: "we realize how much rigid gender roles and patriarchy have trickled down into societies and guides our thoughts and actions, even in ways we do not understand, at times." The Court criticized the Family Court’s judgment for perpetuating misogynistic notions, saying that the findings reflected "exactly what we have said in the prefatory paragraphs of this judgment - perhaps unwittingly and subconsciously and not deliberately."

Regarding the appellant's behaviour, the Court emphasized that "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 Court further denounced the Family Court's conclusion that the appellant, due to her attire, was of "loose morals," labelling it as "sexist in tenor, and lazed by archaic notions of patriarchy."

On the issue of divorce, the Court rejected the idea that a woman should be sad after a divorce, stating: "a woman ought to be subdued, servile and submissive... We cannot, in any manner - even in wildest latitude - offer approval to any such gender statement." It also criticized the Family Court for failing to consider the appellant's testimony regarding the delay in presenting the children, stating: "We wonder why the learned Court did not see this or assess it."

The Court acknowledged the children’s preference to be with their mother, noting: "We are without doubt that both the children are remarkably bright and articulate, with full command of what they want in life and of what they want from their parents."

It concluded that the appellant should be granted custody, stating: "We cannot find favour with the impugned judgment and decree and that it deserves to be set aside, denouncing all above mentioned findings against the appellant."