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Synopsis

The Kerala High Court has held that separating a one-year-and-four-month-old infant from her mother infringes on the mother's right to breastfeed and the baby's right to be breastfed, both of which are aspects of the right to life under Article 21 of the Constitution of India. The court also highlighted that the Constitution also mandates the State to promote nutrition, implicitly supporting breastfeeding practices.

The court, presided over by Justice V.G. Arun, made the observation while quashing the order of the Child Welfare Committee (CWC) and directing the custody of an infant be handed over to her breastfeeding mother, emphasising the child's best interests and the mother's right to care for her child. The court noted : “this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India; it is unfortunate that this pretty child for no fault remained un- breastfed, its lactating mother having had no access to it till now; in a civilized society such things should never happen.”

The case involved the petitioner (mother), who married the respondent in 2019, and their child was born in 2023. Three months after the child's birth, the petitioner left her husband, citing harassment. Her husband subsequently lodged a police complaint, resulting in the registration of an FIR. The petitioner moved in with her mother but later eloped with another man, leading to further complaints by her husband. During the investigation, the police presented the petitioner before the Magistrate, who, after recording her statement, allowed her to live independently, acknowledging that she was 23 years old and had chosen to live with another person voluntarily. The Magistrate, however, directed the police to present the child before the CWC, suspecting the child might require care and protection. The CWC granted custody of the child to the respondent, prompting the petitioner to approach the High Court.

The court criticised the decision of the CWC as one being clouded by bias, focusing on the mother’s choice to live with someone other than her husband, instead of prioritising the child’s best interest. The court observed : “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.”

Citing the High Court’s earlier decision in Aneesa F. v. Shafeekmon K.I. (2023), which states that moral judgments can undermine the objectivity required in such inquiries, the court stated that the CWC’s order violated principles of natural justice and the fundamental rights of both the petitioner and the child.

Consequently, the court set aside the order of the CWC, noting that, “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 (Father).”

In furtherance, the court directed the father to hand over custody of the child to the mother immediately.

 

Cause Title :  xxxxxxx v State of Kerala and Others [WP(C) NO. 35211 OF 2024]

Appearance : By Advocates Bhanu Thilak, S.R.Prasanth and Vishnu R for the petitioner; and Advocates Joseph George, P.A.Rejimon, Nikita Nair and Vivek Jos Puthukulangara for the respondents.