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Denies Custody to Mother, Citing '' in Child Welfare Case
The has dismissed an appeal filed by a mother seeking custody of her two minor children, holding that her admitted immoral conduct rendered her unfit to have custody. A division bench of Justice P.T. Asha and Justice N. Mala upheld the family court's order, emphasizing that the welfare of the children—including their moral and ethical upbringing—is paramount.
A Mother's Plea and the Father's Response
The appellant mother and respondent father were married in under Hindu rites. Two children were born: a son now aged 9 and a daughter aged 7. The mother claimed she was a woman of "sterling character" who had been sent out of the matrimonial home due to a misunderstanding, and that the children needed maternal care. She argued that the father lacked moral values and that keeping the children with him was not conducive to their welfare.
The father countered with grave allegations. He claimed the mother was of "loose moral character," had shared nude and semi-nude photos with third parties, and engaged in late-night phone and video calls with multiple men, including one named Lokesh. He also alleged she had taken a gold chain belonging to him and given it to another man. The father submitted that the mother fed the children junk food and put them to bed early to facilitate her activities. He insisted she was unfit for custody but offered visitation rights at a common place.
Evidence of Immoral Conduct
The father produced a pen drive (Ex.R3) and the mother's cellphone (R.M.O.1) containing nude and semi-nude photographs of the mother, some of which included the minor children. During cross-examination, the mother admitted the cellphone was hers and that it contained such photos with her children. She also acknowledged having conversations with several named men from
while traveling home from work. The family court judge, after reviewing the evidence, noted that the photos revealed
"the perverted and obnoxious sexual desire of the petitioner exhibiting her private parts to her extra marital partners."
Court's Duty
The High Court observed that in custody matters, courts exercise
jurisdiction, and the paramount consideration is the . Drawing on precedents, the bench explained that "welfare" includes moral and religious welfare, not just physical well-being. The court cited
Nil Ratan Kundu v. Abhijit Kundu
(2008) 7 SCC 413, which held that moral and ethical values are
"even more important, essential and indispensable considerations"
than physical comforts. The court also referred to
Rosy Jacob v. Jacob A. Chakramakkal
(1973) 1 SCC 840, which stated that children are not chattels and their welfare must guide decisions, and
Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari
(2019) 7 SCC 42, reiterating the welfare principle.
Applying the "" from Nil Ratan Kundu —whether custody would be in the minor's welfare, not merely whether the father is unfit—the court found the mother's conduct disqualifying.
Key Observations
"All these allegations point to a person who has a
and whose company would be detrimental to the welfare and well being of two minor children who are at an impressionable age,"
the court said.
Reflecting on cultural ideals, the bench noted the Indian adage "Matha, Pitha, Guru, Deivam," which places the mother above God.
"Unfortunately, the appellant before us has failed to remember her duty and status as a mother and that it is the mother who inculcates good behaviour to the children right from the time she breastfeeds her child,"
the court observed.
The court concluded that if custody were given to the mother, the children
"would grow up without understanding the difference between what is morally and ethically correct."
Final Verdict
The High Court found no reason to interfere with the family court's decision, which had rejected the mother's custody petition. The appeal was dismissed with no costs, and the connected miscellaneous petition was closed. The father's offer of visitation rights at a common place remains open, but the mother will not have custody of the children.
