Woman's Character Can't Be Decided By Certificate Given By People Having An Ostrich Mindset: Chhattisgarh High Court

In a significant observation, the Chhatisgarh High Court has ruled that if a wife doesn't squeeze into the mold as per the desire of husband, it would not be a decisive factor to lose the custody of the child her.

The Bench of Justice Goutam Bhaduri and Justice Sanjay S. Agrawal further remarked that the character certificate given by a few of the society members, who might have an ostrich mindset, can't be the basis to decide the character of a woman.

With this, the Court set aside an order of the Family Court, Mahasamund wherein the custody of a 14-year child was granted in favor of the respondent/father and ordered that the child's custody be handed over to his mother (appellant).

The case in brief 

The respondent/father moved an application under Section 25 of the Guardians and Wards Act, 1890 seeking custody of the child namely Dheeraj Kumar, who was then in the custody of her mother, the divorced wife of the respondent.

Importantly, the custody of the child was granted to mother in the divorce decree dissolving marriage between the responded/husband and appellant/wife.

In her application, the respondent/father sought the custody of the child on the ground that the mother (appellant herein) is in company of different male and she used to travel along with other male member and the attire of the lady was not befitting to which would reflect that she had lost her chastity.

It was further contended by him that if the child is kept in her custody, there would be an ill effect to the mind of child as such the child be given in custody of father. It was also alleged that she was in an illicit relation, used to consume liquor, Gutkha and used to smoke cigarette.

When the custody was indeed granted to the Father/Respondent, the Appellant/Mother moved to the High Court.

The counsel for the appellant/mother submitted that the Family Court's order was based only on the statement of the third person that the child welfare would be with the father. It was further submitted that there was nothing on record to establish the fact except those bald oral statements and to draw inference to assassinate character of wife.

Court's observations

Perusing the evidences addcused by the witnesses of both the sides, the Court, at the outste, observed that the evidence led by the witnesses on behalf of fatherwas based on their own opinions and thoughts.

In this regard, the Court specifically noted that if a lady is required to do a job that too in the field for her livelihood, naturally she would be required to move from one place to other and only because of the fact that she is required to rub her shoulder with public at large or male i.e. to accompany them in the car, there cannot be an inference that she has lost her chastity.

Further, underscoring that only bald oral statement had been made that she is addicted to consume liquor and smoke etc, the Court, importantly, remarked thus:

"It is important to set a red line when the attack is made to assassinate character of lady. The statement of witnesses of plaintiff would show that they are largely influenced by attire of women as she wears jeans and T-shirt along with the fact that she is marching along with male members of society. We are afraid that if such ill conceived exercise is given a spot light, then to protect the right & freedom of women would be a long arduous battle. If the wife do not squeeze into the mold as per desire of husband, it would not be a decisive factor to lose the custody of the child by her."

The Court further stressed that if the whole point was to show that due to the character of wife, the child would be adversely impacted, then the degree of nature of evidence should have been much more & severe to hold that continuous a kind of behaviour of wife would be detrimental to the interest of child.

Therefore, considering the entire evidence on record, the Court came to a conclusion that if the child is kept in the custody of the mother, the welfare of the child would be ensured. Accordingly, the direction of the Court below to handover the custody of the child to the father was set aside. However, the father was granted the visitation rights.

Case title - Deepa Nayak v. Pitamber Nai [FAM No. 35 of 2016]

Case Citation: 2022 LiveLaw (Chh) 38

Click Here To Read/Download Judgment