CWC's Order Cannot Be Based On Personal Moral Values, Must Protect Child's Interests: Kerala HC Gives Custody Of Infant To Breastfeeding Mother

The Kerala High Court quashed an order of Child Welfare Committee (CWC) giving the custody of a one-year child to the father observing that the Committee did not even consider that the child was being breastfed by the mother. Justice V. G. Arun gave the custody of the child to the mother.The CWC had awarded custody to the father after observing that the mother had chosen to stay with a man other than her husband after birth of the child.The Court noted that the order of CWC violated the right of the mother to breastfeed the baby and right of the baby to be breastfed which is protected under the right to life under Article 21 of the Constitution. The Court further said that breastfeeding is implicitly supported by the Constitution as the Constitution imposes a duty on the State to raise the level of nutrition.Background of the caseThe mother and father of the child is living separately. As per the wife, she left her husband due to constant mental and physical harassment. Initially, the wife was living with her mother. One day, she eloped with the step-father of her husband. On coming to know this, the husband filed a missing person complaint before the police. After investigation, police produced the wife before the 1st Class Judicial Magistrate. The wife was set free after the Magistrate recorded that the wife had voluntarily chosen to live with the person she eloped with. However, the Court asked the police to produce the child before the Child Welfare Committee. The Committee gave the custody of the child to the father saying that the child is unsafe with the mother and her companion.Aggrieved by this order, she approached the High Court to get the custody of the child for at least half an hour every day to breastfeed the baby. Later she amended her prayer and sought to quash of the order of CWC.CWC Cannot Base Their Decision On Personal Moral ValuesThe High Court held that the order of the CWC was based on the predilection of the members. The Court held that the Committee should only consider about the welfare of the child. The Court added that the mother chose to live with someone other than her husband is not the concern of the Committee. The Court held that personal moral values give rise to biased judgments.“Judged by the moral standards of the members, the petitioner may not be a good person, but that does not make her a bad mother. Personal moral values always result in biased judgments. Unfortunately, the order reflects nothing other than the moral bias of the committee members.”The Court added that the CWC should follow the general principles mentioned in Section 3 of the Juvenile Justice (Care and Protection of Children) Act and treat all persons with equal dignity keeping the best interest of the child in mind. The Court said that if the Committee follows these principles, there will be a marked difference in the decision-making process and the decision.CWC Can Intervene Only When Neither Parent Can Take Care Of The ChildThe High Court noted that for CWC to invoke its powers, the child must be a “child in need of care and protection” as defined in Section 2(14) of Juvenile Justice (Care and Protection of Children) Act, 2015. The Court concluded that the CWC might have considered the child in need of care and protection under the ground mentioned in Section 2(14)(v). The Court observed that for that section to attract, the parent or guardian should be found unfit or incapacitated. The Court held that the parens patriae power of the CWC can be invoked only when both the parents are not in a position to take care of the child. The Court observed that in this case, both the parents are willing and capable to look after the child.The Court lamented that due to the order of CWC, the baby had to be separated from her mother for almost one month. The Court quashed the order of CWC holding it to be violative of the principles of natural justice.Counsel for the Petitioners: Advocates Bhanu Thilak, S. R. Prasanth, Vishnu R.Counsel for Respondents: Advocates Joseph George, P. A. Rejimon, Nikita Nair C. S., Vivek Jos PuthukulangaraCase No: WP(C) 35211 of 2024Case Title: XXX v State of Kerala and OthersCitation: 2024 LiveLaw (Ker) 671Click Here To Read/ Download Order

CWC's Order Cannot Be Based On Personal Moral Values, Must Protect Child's Interests: Kerala HC Gives Custody Of Infant To Breastfeeding Mother

Manju Elsa Isac

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