Clothing Is Form Of Self-Expression, Courts Should Not Morally Police Women Based On Their Clothes: Kerala High Court

The Kerala High Court in a recent judgment observed that that a woman's choice of dress should not be subject to moral policing or judgment, especially by the courts. The Court cautioned that the Judge's personal opinions should not be incorporated into judgments. The Division Bench comprising of Justice Devan Ramachandran and Justice M. B. Snehalatha reminded that the Constitution grants everyone equal rights irrespective of gender.In a custody battle over their 2 children between a divorced couple, the husband had produced screenshots of the pictures of the mother in Bumble. The Family Court while denying custody to the mother stated that she was wearing a 'revealing dress' and therefore is a person of loose morals. The High Court reminded that a woman should not be judged based solely on her dress.“… that clothing is a form of self-expression being part of an individual's identity, or an expression of general aesthetics. 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 sartorial preferences that a woman makes, is that of her own choice, which cannot be subjected to moral policing or assessment, particularly by Courts”The High Court said that the observations of the court were not even factually true and the court said that the woman is seen to be dressed modestly in the said photograph.The Court further noted that the Family Court didn't advert to the allegation of the woman that her former husband had himself posted these pictures on 'Bumble' in its order. The Court held that this is another reason to say that the conclusions of the family court were unnecessary.Background of the CaseThe 2 parties contesting for the custody of their children had obtained divorce with mutual consent. The Family Court found that the mother of the children is not capable of having custody of her children by virtually concluding that she was a person of loose morals, used to wearing loose dresses, posting her pictures on certain dating apps, spending time with her friend, particularly male friends, exhibits uncivil behaviour by using abuses against her husband. Against this order, the wife approached the High Court.The mother had testified before the Family Court that she was locked up by her husband for over nine months and was subjected to cruelty. She said that in a moment of desperation, she contacted a person to hack into her husband's computer system to know what he had planned for her in future. However, she stated that the plan never materialised and no hacking was done.Observation of the CourtThe High Court saw from one of the screenshots ofthe WhatsApp chat between the parties that the mother called the father- 'dog' and asked him to give her a divorce. The High Court observed that the appellant might have used that word in 'a fit of rage' and being frustrated of not getting a divorce. The High Court held that that is no reason for the Family Court to conclude that she is habituated to such language.The High Court observed that the woman had filed for divorce and she must have felt elated on finally obtaining it and celebrated it with her close group of friends. The Court held that the notion that women must be sad in such situations is a misogynistic prejudice.“The further holdings of the learned Family Court that a women must always feel sad on obtaining divorce from her husband, exposes misogynistic prejudice and reinforces a very skewed gender stereotype, that a woman ought to be subdued, servile and submissive.”The Court said that they had interacted with both the children and they want to stay with their mother but expressed their wish to have occasional visits and meetings with their father. The Court said 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”. The Court granted the permanent custody of the children to the mother.The Court further observed that the order of the Family Court had perpetuated notions of gender roles and patriarchy. The Court said such notions perpetuate casual sexism.“Consciously or subconsciously, societies impose restrictions on women's autonomy and scrutinize their choices; and they are supposed to adhere to certain standards, including their sartorial choices and appearances. Such unwritten norms perpetuate casual sexism and strengthen the glass ceiling for women, with control being considered exclusively to men.”The High Court held that they are denouncing all findings against the appellant by the Family Court as 'court cannot be suspected to be guilty of even borderline misogynism or sexism'Counsel for the Appellant: Advocates Jagan Abraham M. George, Jaison AntonyCounsel for the Respondent: Advocates George Varghese (Perumpallikuttiyil), S. Sreekumar (Sr.)Case Title: xxx v...

Clothing Is Form Of Self-Expression, Courts Should Not Morally Police Women Based On Their Clothes: Kerala High Court

Manju Elsa Isac

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