Breastfeeding An Inalienable Right Of Lactating Mother Protected Under Article 21; Right Of Infant To Be Breastfed Also Assimilated With Mother's Right : Karnataka High Court

Justice Krishna S Dixit in his order said,

"In the light of domestic law and the international law, breastfeeding needs to be recognized as an inalienable right of the lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother's right; arguably, it is a case of concurrent rights; this important attribute of motherhood is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India."

The court made this observation while deciding on a very uncommon case, in which the biological mother of a child, who was stolen soon after birth from the maternity home, had approached the court seeking the return of the child from the foster mother. Earlier, the mother had filed a habeas corpus petition in the court, following which the child was traced.

The court while allowing the petition opined that the custody of the minor child needs to be given to the genetic mother. It said,

"Between the genetic mother and the foster mother, the claim of the former should have priority over the latter, subject to all just exceptions, into which the case of the foster mother is not shown to fall; this augurs well with reason, with law and with justice."

Further, the court observed in such cases courts cannot lay down thumb rules as the elements involved are so complex. "However a broad norm is that in the matters of child custody, the claim of the strangers should yield to that of the genetic parents," the court said.

The court referred to the International Convention on the Rights of the Child, 1989,  Article 25 (2) of the Universal Declaration of Human Rights and Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) which recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. Also, Section 3(ix) and section 2 (9) of the Juvenile Justice (Care and Protection of Children) Act 2015 were considered.

It then said, "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."

Advocate Venkatesh Prasad R, for the foster mother, had submitted that his client should be permitted to retain the custody of the child consistent with what Devaki Maa allegedly did qua Yashoda Maa, as mentioned in Bhagavatam.

The court said, "No authoritative text of the episode is produced to show that there was any dispute of the kind between these two women of Grace, in the era that is long gone by; in such matters, unsubstantiated episodes from some history or mythology do not much guide the decision-making process; ordinarily, scriptures cannot be cited as precedents or as instruments having force of law, notwithstanding the light they throw when the path we tread is shrouded in darkness; in matters like this, scriptural texts are not treated as edicts of the law, unless they are legislated expressly or by necessary implication or otherwise recognized."

Rejecting the contention of the foster mother that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with her.

The court said, "This is ludicrous; children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between "haves and have nots" is not invocable, at least in this case."

It added, "It is a matter of common knowledge consistent without experience that a genetic mother treats all her children as being an integral part of her body & soul, regardless of what the children do to her; this contention of the foster mother is abhorrent to the very notion of motherhood."

Following the intervention of the court, the foster mother gracefully delivered the custody of the child to its genetic parents. The genetic mother too, with equal grace, stated that the foster mother may see the child whenever her heart so desires.

To which the court observed, "Such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity nowadays. Thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all."

It was clarified that there is & shall be no cause of action against the foster parents in civil or criminal law concerning the alleged kidnapping of the child.

Case No: W.P.NO.16729/2021

Appearance: Advocate Sirajuddin Ahmed for Petitioner; Advocate Vinod Kumar for R1; Advocate Venkatesh Prasad. R, A/W Advocate S. Subramanya; for R3

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