Kerala High Court: In a writ petition filed by a new mother against the order passed by the Child Welfare Committee (‘CWC’), finding her unfit to look after her baby aged one year and four months and gave custody of the baby to her husband, V.G. Arun, J. while noting that the CWC did not consider the fact that the child was being breastfed by the wife, when it hastily granted custody to the husband, directed the husband to handover custody of the child to the wife. Further, the Court said that the CWC deemed the mother unfit based on the subjective views of its members. The fact that the mother chose to live with someone other than her husband should not be the Committee’s concern.
Background:
The wife left her husband, citing ongoing mental and physical harassment. Following her departure, the husband filed a complaint, resulting in an FIR under Section 57 of the Kerala Police Act. After staying with her mother, the wife eloped with a man, prompting the husband to lodge another complaint, leading to a second FIR. The police subsequently presented the wife to the 1st Class Judicial Magistrate, who, upon confirming that she was 23 years old and had chosen to live with the other man voluntarily, set her at liberty. The Magistrate, however, ordered the police to present the child to the Child Welfare Committee (CWC) for further assessment, believing the child might need care and protection. On 23-09-2024, the wife and her child were brought before the CWC, which granted custody of the child to the husband after he provided a written undertaking. In light of these circumstances, the petitioner has filed a writ petition seeking specific relief.
The wife submitted that the baby is being breastfed by her and by reason of the impugned order, the child is deprived of mother’s milk.
Analysis and Decision:
The Court highlighted three of the general principles to be followed in the administration of the Juvenile Justice (Care and Protection of Children) Act, 2015, (‘the Act’) which are Principle of dignity and worth; Principle of best interest; and Principles of natural justice.
The Court remarked that if the above principles are scrupulously followed, by the CWC treating all persons with equal dignity, keeping the best interest of the child in mind while taking decisions and ensuring fairness in procedure, there will be a marked difference in its decision-making process and the decision itself.
The Court said that the impugned order was passed on the day the child was produced before the CWC, without conducting any enquiry or affording reasonable opportunity of hearing to the wife.
The Court emphasised that for the CWC to invoke its powers under the Act, the child produced before the Committee, must be a child in need of care and protection as defined in Section 2(14) of the Act. For Section 2(14)(v) to be attracted, the parent or guardian should be found unfit or incapacitated.
Concerning the question that whether the CWC is having the power decide the right to custody when both parents are capable of and willing to look after the child, the Court reiterated that the Committee’s role would arise only when both parents are not in a position to take care or protect the child or children. The parens patriae principle would enable intervention by the CWC for protecting the child and acting as its parent only when the biological parents fail to take care and protect the child.
The Court remarked that the CWC deemed the mother unfit based on the subjective views of its members. The fact that the mother chose to live with someone other than her husband should not be the Committee’s concern. While the Committee may judge her actions against their moral standards, this does not inherently make her a bad mother. The Court emphasized that personal moral values often lead to biased judgments and said that the order reflects the moral bias of the Committee members rather than an objective assessment of the mother’s suitability.
The Court mentioned that the CWC did not consider the fact that the child was being breastfed when it hastily granted custody to the husband.
The Court accepted the wife’s submission that separating a one-year-and-four-month-old baby from its mother infringes upon the mother’s right to breastfeed and the child’s right to be breastfeed. This right is a fundamental aspect of the right to life under Article 21 of the Constitution. Furthermore, the Constitution places a duty on the State to enhance nutritional standards, which implicitly supports the practice of breastfeeding.
The Court expressed its dismay at the fact that, due to the impugned order, the baby has been separated from its mother for nearly a month, depriving the child of the essential care, comfort, and love that are crucial at this developmental stage. The Court noted that the CWC failed to take these significant factors into account. As a result, the Court held that the impugned order cannot withstand legal scrutiny and raises serious concerns about the well-being of both the mother and child.
The Court, while rejecting the submission of the husband that the writ petition is not maintainable due to the alternative remedy available under Section 27(10) of the Act, said that the impugned order was issued in violation of the principles of natural justice, which significantly impinges upon the fundamental rights of both the wife and the child. Therefore, the Court determined that the writ petition is indeed maintainable.
Therefore, the Court directed the husband to handover custody of the child to the wife. Further, the Station House Officer was directed to ensure that the husband complies with the above direction.
[X v. State, 2024 SCC OnLine Ker 6166, decided on 25-10-2024]
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