Breast Feeding Child Has Fundamental Right To Mother's Love: Punjab & Haryana HC Directs In-Laws To Handover 8 Months Old's Interim Custody

The Punjab and Haryana High Court has directed the in-laws of a woman to handover to her the interim-custody of her 8-months-old and 2-years-old daughters.

Justice Kuldeep Tiwari observed that the breastfeeding infant cannot be deprived of her fundamental right to get mother's love and care.

"In the instant case, one of the petitioner's minor daughters, who is aged about 08 months, is completely dependent on her mother's breastfeeding for nourishment and as such, she cannot be deprived of her fundamental right to get the love and affection of her mother, who is well capable to take care of her. Even the physical and biological needs of an 8 months' old child lies in the association of her mother."

The Court noted that, "there is nothing on record" which may impel to draw an inference that the custody of the minor children with the mother is against their welfare.

"Rather, taking into account the tender age of the minor children, coupled with the peculiar facts and circumstances of this case, this Court is prima facie of the view that the custody of the minor children with their biological mother/petitioner is in their interest and welfare," it opined.

These observations were made while hearing the habeas corpus plea of a mother who was seeking release of her minor daughters aged 8 months and 2 and a half years old, from the alleged illegal detention of her in-laws.

It was alleged that the woman left her matrimonial home after her husband's death because her father-in-law "created such an exploitative and sexually abusive atmosphere." However, she was not allowed to take her daughters along.

After hearing the submissions, the Court observed that the daughters are of tender age, whose welfare lies with their mother.

The Court rejected the argument of her in-laws that prior to institution of the petition, the petitioner had filed an application under Section 97 CrPC before the Magistrate, thereby seeking custody of the minor children, but, the application was dismissed. Therefore habeas plea on the "same cause of action, is not maintainable."

The "dismissal order does not create any hurdle for the petitioner to maintain the instant writ of habeas corpus, especially when the learned Magistrate concerned has held the said application to be non maintainable, vis-a-vis, the relief sought therein and also when liberty was granted to the petitioner to avail alternate remedy for getting the custody of the minor children," the Court opined.

Reliance was placed on Apex Court's decision in Nil Ratan Kundu and Anr. V/s Abhijit Kundu (2008) to underscore that "the first and foremost consideration is welfare of the child and not the right of parents."

In the light of the above, Justice Tiwari opined that, "the welfare of the minor daughters lies with their biological mother (petitioner), especially when her nourishment depends on her mother's breastfeeding."

Consequently, it directed woman's in-laws to hand over interim custody of the minor children/alleged detenus to her.

Ms. Pushpinder Kaur Minhas, Advocate for the petitioner.

Mr. Rajesh Gaur, Addl. A.G., Haryana.

Mr. S.S. Momi, Advocate

for the respondents No.5 to 7.

Case Title: XXXX v. XXX

Citation: 2024 LiveLaw (PH) 235