Orissa High Court: In a criminal application under Section 482 of the Code of Criminal Procedure, 1973 (‘CrPC’) for quashing the Trial Court’s decision, whereby the biological parent’s application for custody of their daughter was turned down, who allegedly kidnapped a baby boy from the hospital and abandoned their daughter, the Single Judge Bench of Sibo Sankar Mishra, J., held that while the circumstances surrounding the abandonment of the female child were grave, it was equally important to recognize the maternal instinct and the natural bond between a mother and her child. Thus, the Court allowed the application and restored the custody of the girl child with the biological parents.
Background
The present parents were accused of committing an offence punishable under Sections 451 and 363 of the Penal Code, 1860 (‘IPC’). It was alleged that the complainant admitted his newborn baby to the Hospital, and during treatment, someone had taken his son from the hospital bed. The investigation revealed that the present parents kidnapped the baby boy from the hospital by abandoning their daughter. The abandoned biological daughter was given to the custody of the respondent agency. In the application for custody of the biological daughter, the Trial Court dismissed the same, opining that it lacked the jurisdiction to entertain this petition.
Analysis and Decision
The Court stated that to protect the right of the girl child, who is an infant and the breast-feeding baby, takes supremacy over all other incidental issues pertaining to the case. Hence, the Court agreed with the submissions of the counsel of the present parents. The Court also relied on Husna Banu v. State of Karnataka, 2021 SCC OnLine Kar 15717, wherein, the Karnataka High Court held that breastfeeding is an inalienable right of lactating mother, protected as a facet of the right to life under Article 21 of the Constitution. Further, the Court highlighted that Section 3(ix) of the Juvenile Justice (Care and Protection of Children) Act, 2015 also recognizes this principle of paramount interest of the child. The Court added that in Kamlesh Rani v. State of Punjab1, it was emphasized the biological mother’s indefeasible right to ask for interim relief in the form of interim restoration of custody of the minor boy so that the suckling infant will get the befitting nourishment needed for his physiological, emotional, and, psychological growth.
Hence, the Court stated that the ‘right of the child precedes over the guilt of the parents’ and that the custody of the infant child often tends to favour the mother. The Court observed that the endless affection of the mother for her child develops right from the womb, her ability to care and love for the child should not be subjected to probe. An incorrect decision out of societal stigma shall not create of shadow of doubt about a mother’s affection for her child. The Court also remarked that the deep-rooted social malady of tending to prefer a male child over a female child is the real cause of dispute. The facts of this case bring to light the deep entrance of societal biases that prioritise male child over female child often driven by patriarchal and cultural practices that favour male lineage for inheritance, ritual and property rights. The Court said that the alleged action of the present parents abandoning their biological daughter in favour of a male child reflects this regressive mindset. However, the Court cautioned that the Courts must exercise caution in allowing such societal prejudices to overshadow the fundamental rights and welfare of the child.
The Court said that the “tender years doctrine” mandates the custody of a young child, especially an infant should ordinarily be awarded to the biological mother as she is better positioned to provide the care, nurturing and emotional support necessary for the child’s holistic development.
Conclusively, allowing the present application and restoring the custody of the girl child to the petitioners who are the biological parents within three days subject, the Court gave the following directions:
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Regular inspections shall be conducted by members of the Child Welfare Committee to ensure the safety and protection of the child.
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Continuous evaluations of the child’s physical health and general well-being by the Child Welfare Committee shall be done.
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The parents shall cooperate with the CWC and comply the conditions imposed by the Child Welfare Committee.
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CWC may facilitate therapy and provide support to parents as it falls within its mandate to ensure the welfare of the child and address the underlying issues that may impact the child’s upbringing.
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Assessment of parental behaviour towards the child, taking into consideration their previous conduct of abandonment and neglect may be kept in mind to impose the necessary condition.
[Sumatimani Sau v. State of Odisha, CRLMC No.4792 of 2024, decided on: 29-01-2025]
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1. CRWP-4561-2022.
Can the biological parents be trusted to care for the girl whom they abandoned,just because the court restored her? What happened to the stolen boy,?