'No One Else Can Give To Ward All That A Mother Can': Kerala High Court Unites Differently Abled Child With Mother

No one else can give to the ward all that a mother can give to her, said the Kerala High Court while uniting a differently abled child with her mother.

The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha invoked parens patriae jurisdiction to ensure that the child is not left "at the mercy of others".

The crux of the case is that the petitioner-mother was living separately from her husband after the birth of the child in question. The child resided with the father who obtained an order under Section 14 of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 (hereinafter, 'Act, 1999'), appointing him as the guardian of the ward and his second wife (6th respondent) as the alternative guardian. 

After his death, the petitioner sought the child's custody who was meanwhile handed over to the Grace Home Charitable Society (5th respondent) by the local authorities. The 5th respondent insisted on concurrence of the District Administration and the Gram Panchayat however, the same was refused. Hence this petition was filed.

Court observed that Section 14 does not affect in any manner, the rights of the parents of persons with disability to take care of their dependent children with disabilities, if they are not otherwise disqualified. The Court thus directed the petitioner to submit an affidavit as to whether she would be in a position to care for the ward. Ultimately, finding the petitioner fit, the Court ordered that the child be handed over to her.

The petitioner was represented by Advocates R. Krishna Raj, E.S. Soni, Sangeetha S. Nair, and Resmi A. Senior Government Pleader and Additional Public Prosecutor P. Narayanan, Public Prosecutor K.A. Anas, and Advocate Santhosh Poduval appeared on behalf of the respondents. 

Case Title: Santha Kumari v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 348

Case Number: WP(CRL.) NO. 296 OF 2023

Click Here To Read/Download The Judgment