Personal Moral Values Always Result In Biased Judgments: Kerala HC Quashes CWC’s Order; Directs Handover Of Child Custody To Breastfeeding Mother
The Kerala High Court directed the handover of custody of an infant to her breastfeeding mother and quashed the order of the Chief Welfare Committee (CWC).
The Court was dealing with a writ petition filed by a young lactating mother against the CWC’s order which found her unfit to look after her baby and gave custody to her husband.
A Single Bench of Justice V.G. Arun remarked, “This Court in Aneesa F (supra) has held that the moral judgment reflected in orders would defeat the objective of inquiry in matters of this nature. The one and only concern of the Committee should be the best interest of the child. That, the mother of the child has chosen to live with a person other than her husband is not the Committee's concern. Judged by moral standards of the members, the petitioner may not be a good person, but that does not make her a bad mother. Personal moral values always result in biased judgments. Unfortunately, the order reflects nothing other than the moral bias of the Committee members.”
Advocate Bhanu Thilak appeared on behalf of the petitioner while Advocates Joseph George and Deepa Narayanan appeared on behalf of the respondents.
In this case, the petitioner had married the respondent in 2019 and a child was born to them in 2023. The petitioner left the company of her husband three months after baby birth, which according to her was due to his constant harassment, both mental and physical. Hence, her husband lodged a complaint before the Police, resulting in registration of FIR. The petitioner started living with her mother and during her stay, she eloped with a man. On coming to know about this, the respondent lodged another complaint and during the investigation, the police produced the petitioner before the Magistrate.
The Magistrate recorded petitioner's statement and on being convinced that she was aged 23 years and had chosen to live with another man on her own volition, set her at liberty. By the same order, the Magistrate directed the police to produce the child before the CWC for appropriate orders, being of opinion that the child may be in need of care and protection. Accordingly, CWC handed over the custody of child to the respondent and challenging this, the petitioner was before the High Court.
The High Court in the above context of the case, observed, “Surprisingly, the fact that the child was being breastfed is not seen to have been taken into account by the Committee, while hastily granting custody of the child to the 3rd respondent. The counsel for the petitioner is correct in her submission that, severance of a one year and four month old baby from its mother violates her right to breastfeed the baby and that of the baby to be breastfed, such right being a facet of right to life under Article 21 of the Constitution.”
The Court added that, our Constitution also imposes a duty on the State to raise the level of nutrition, which implicitly support breastfeeding.
“It is disheartening to note that by reason of the impugned order, the baby is separated from its mother for the past almost one month, denying the care, comfort and love which is most crucial at this stage. The CWC having failed to consider these crucial factors, the impugned order cannot withstand the scrutiny of law”, it further noted.
The Court said that, although the counsel for the respondent contended that the writ petition is not maintainable in view of the alternative remedy available under Section 27(10) of the Juvenile Justice (Care and Protection of Children) Act 2015 (JJ Act), the contention is rejected, as the impugned order is passed in violation of the principles of natural justice, thereby impinging upon the fundamental rights of the petitioner as well as the child.
Accordingly, the High Court allowed the writ petition, quashed the impugned order, and directed the husband to forthwith handover the child’s custody to the mother.
Cause Title- XXXXXXX v. State of Kerala & Ors. (Neutral Citation: 2024:KER:79513)
Appearance:
Petitioner: Advocates Bhanu Thilak, S.R. Prasanth, and Vishnu R.
Respondents: Advocates Joseph George, Deepa Narayanan, P.A. Rejimon, Nikita Nair, and Vivek Jos Puthukulangara.
