The Kerala High Court has held that judging women on the basis of their clothes or expecting them to be sad on getting divorce are indications of a "misogynistic prejudice" and "reinforce a very skewed gender stereotype".

The observation by a bench of Justices Devan Ramachandran and M B Snehalatha came while setting aside a Family Court order denying custody of the children to a mother for several reasons including that she wore revealing dresses, celebrated her divorce and had an account on a dating app.

Strongly disagreeing with the findings and reasoning of the Family Court, the High Court set it aside by saying that "courts cannot be suspected to be guilty of even borderline misogynism or sexism and our constitutional mandate is that we decide matters as per its conscience and within its overriding umbra".

The High Court granted custody of the children to the mother by also taking into account the kids wish that they wanted to stay with her full-time and were open to meeting their father on holidays.

In its recent order setting aside the Family Court decision, the High Court observed that through such cases it has realised "how much rigid gender roles and patriarchy have trickled down into societies and guides our thoughts and actions".

"We unfortunately continue to follow and perpetuate such unconsciously, which surely warrants continuous education and close introspection," It said.

The bench further said that in the "heteronormative context, being feminine is construed as synonymous to being modest and even submissive or that is how this term is more than often interpreted".

It said that 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 choice of clothes and appearances.

"Such unwritten norms perpetuate casual sexism and strengthen the glass ceiling for women, with control being considered exclusive to men.

"Unfortunately, through time, unwritten dress codes impact women throughout their lives. The sexualization and policing of women’s clothes, even from early school days, become active barriers to self-actualization and a full life," the bench said.

Referring to the Family Court's reasons for granting custody to the father, the High Court said that the lower court found the mother to be a person of loose morals as the husband alleged that she wore revealing dresses and had posted her pictures on dating apps.

The High Court said that the Family Court arrived at the conclusion without any basis and without considering the woman's argument that it was her husband who created her account in the dating app and posted her pictures there.

"Such conclusions are unfortunately sexist in tenor, and lazed by archaic notions of patriarchy, especially when no one has a right to judge women by the manner in which she dresses, or by the choices of her manner of life.

"Though we cannot find the findings of the Family Court to be true even factually, we deem it necessary to remind that clothing is a form of self expression being part of an individual's identity, or an expression of general aesthetics," the bench said.

It further said that it was "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".

"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," it added.

The bench said the Constitution grants equal rights to all without reference to gender and it was unfortunate that it has to make such an observation, as a reminder, when the country is celebrating the 75th anniversary of its Constitution.

It also said that it cannot approve of the "gender statements", like women ought to be subdued, servile and submissive and feel sad on being divorced, made by the Family Court.

"The notion that women should be happy only with marriage and should feel sad on being divorced is, in our view, so ineffable that it requires no further expatiation (explanation)," the bench said.

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