A division bench of Justices A Muhamed Mustaque and Sophy Thomas made the observation on a plea moved by the mother of a minor challenging the order of a family court that granted sole custody of the child to the father.

“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, but 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 High Court observed.

The family court passed the order on the ground that the mother had eloped with another person for pleasure and that the life chosen by her would prejudice the welfare of the children.

While interacting with the Court, the petitioner-mother said that she was forced to leave the matrimonial home due to the strained relationship with her husband.

The petitioner’s father also informed the Court that it was in order to get rid of the marriage that she went with a friend of her brother to make it appear as if she had eloped with someone.

However, the husband maintained that she had eloped with another man. The High Court said that it is not believing either version of events at present.

However, it said that the language used by the family court judge was condemnable. It also said that the family court was wrong in assuming that just because the petitioner mother left the house and was then seen with another man, it cannot jump to the conclusion that she was bad for the child’s welfare.

“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 said in its judgment.

Therefore, the High Court set aside the family court order and granted cyclical custody of the child to both parents.

“Taking note of the facts and circumstances, we are of the view that cyclical custody to parents would be in the best interest of both. We give custody to the mother on alternate Fridays at 5 pm till the next Friday at 5 pm. The child shall be handed over and returned from the premises of the family court, Alappuzha,” the Court ordered.

Case Name: Aneesa F v/s Shefeekmon