"Mother's Indefeasible Right": P&H High Court Grants Infant's Interim Custody To Mother For The Purpose Of Breastfeeding

In a significant order, the Punjab and Haryana High Court recently directed the handing over of the custody of a four-month-old boy to his biological mother for the purpose of breastfeeding.

However, the High Court's bench of Justice Sureshwar Thakur did clarify that the custody would be interim in nature for the limited purpose of breastfeeding the Child. In this regard, the Court also relied upon Article 25(2) of the Universal Declaration of Human Rights.

Further, referring to the Karnataka High Court's last year's decision in the case of 'Husna Banu versus State of Karnataka', the Punjab and Haryana High Court emphasized upon the biological mother's indefeasible right to ask for interim relief in the form of interim restoration of custody of the minor boy.

It may be noted that in Husna's Case, the Karnataka High Court had said that breastfeeding a child is an important attribute of motherhood and is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India.

The Karnataka High Court had also 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.

Read more about the case here: 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

"The above Article has been referred, to in a judgment of the High Court of Karnataka in Bengaluru in case titled as 'Husna Banu versus State of Karnataka', and, to which writ petition No. 16729 of 2021 is assigned, and, has also been revered by it. The above extracted mandate carried in the Universal Declaration of Human Rights, does at this stage, rather completely foist in the biological mother of the infant aged about four months, an indefeasible right, to ask for an interim relief, for the interim restoration of custody of the minor boy to her, from co respondent No. 4, as thereupon, the milk suckling infant would become breast fed by his biological mother, and, thereupon, would become provided the most befitting nourishment rather for his physiological, emotional, and, psychological growth," the Punjab and Haryana High Court observed. [emphasis supplied]

Importantly, the Court also stressed that if the growth of the minor child is impeded through the declining of relief to the petitioner-mother, the Court added, it would not be aptly discharging its solemn duties, either as locus parentis to the minor, or as parens patriae, towards him.

The case in brief

The Petitioner-mother got married to her husband in 2017. In January 2022, she gave birth to a boy and after a period of 20 days, she left along with the infant boy to her parental home, and, subsequently returned to her matrimonial home in May 2022.

While she was still at her matrimonial home, her hsuband, after snatching the infant boy from her, made her leave his house, on the pretext, that he had solemnized marriage with another woman.

Consequently, the petitioner/mother had to come back to her parental home. Thereafter, she moved the instant plea seeking restoration of the infant's custody to her, through a writ of habeas corpus.

The Court ordered for the interim custody of the child, however, it did add that the custody of the infant shall last only up till the survival qua the requirements of breastfeeding of the infant boy, by his natural mother. 

"It is clarified that immediately after the competent pediatrician pronounces with respect to, there being no longer any requirement of the minor infant becoming breast feed, thereupon each of the combatants qua the custody of the infant boy, shall proceed to either draw a settlement, or, a compromise in respect of his custody, or shall with utmost promptitude recourse civil remedies, so that the civil court concerned, upon apposite evidence becoming adduced before it, makes the promptest order either, with respect to the interim custody of the minor boy or, with respect to his permanent custody, being either with his biological mother or, with his putative father," the Court added as it disposed of the plea.

Moreover, the Court granted the grandmother of the minor child the right to visit the parental home of the petitioner/mother to meet the minor infant.

Case title - KAMLESH RANI v. STATE OF PUNJAB AND ORS.

Citation: 2022 LiveLaw (PH) 174

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