A Child Can't Be Deprived Of, Milk And Protection As It Is His/Her Birthright: Gujarat High Court [Read Order]

"It is a birth right of the child to be embraced in the warmth and protection of motherhood. His foundation of health and key nutritive diet is mother's milk. He cannot be deprived of these valuable requirements."

The Bench of Justice Sonia Gokani and Justice Nirzar S. Desai was hearing a habeas corpus plea filed by the mother who prayed before the court that direction be issued for production and the custody of the corpus child who is 8 month old.

Background

She urged before the Court that the child was without her for the past more than three months and he is not getting the mother's milk, which otherwise in his age, he is supposed to have.

It was, therefore, urged that on this ground alone, let the respondent be directed to handover the custody of the child which had been taken away against her will and wish.

Court's Order

The respondents appeared before the Court through Video Conferencing, where in-laws of the petitioner i.e. grandparents of the corpus presented Avyansh from home in presence of lady PI and respondent no.3 – husband of the petitioner was also present.

The petitioner mother joined from the Lunavada Court through Video Conferencing with her paternal grandfather. The Court noticed that the corpus- child (Avyansh) was with the grandparents in a healthy condition.

Noticing the extremely young age of child, "who simply could not be kept away from his mother", the Court thought it necessary to exercise writ jurisdiction to accede to the request of the Petitioner.

"For the better and the fullest health, growth and development of the child, ordinarily mother's custody is a must. The child has no voice of his nor means nor capability to knock the doors of justice for establishing his right of welfare."

The Court further observed

"It is an axiomatic truth that the parents, father and mother are required to look after the welfare of the minor and are treated as natural guardians and yet, rigid insistence of statutory interpretation would not be welcomed for the welfare of such a young child. It is trite law that the custody of child at least till the age of five needs to be with mother."

The Court also relied upon the ruling in re Mc Grath(1893, 1 Ch.143), wherein Lindsey, L.J. had Observed,

"The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word 'welfare' must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded."

Lastly, considering the fact that the petitioner – mother was residing with the grandparents and also noticing the concern of Respondent No.3 for the child, the Court ordered,

"Let him carry the child to the Petitioner mother and he can also ensure generating a conducive atmosphere, keeping aside all other contentious issues which make their relationship sore."

Bearing in mind the disputes between the spouses, the Court was of the opinion that the matter required presence of some authority which could monitor process of smooth handing over and, therefore, it was directed that the child shall be handed over to the petitioner – mother, at the earliest, at the District Court, Lunawada in presence of Learned Principal District Judge.