'Tender Years Doctrine': Orissa HC Restores Custody Of Infant Girl With Mother Accused Of Abandoning Her And Kidnapping Male Child

The Orissa High Court has restored the custody of an infant girl with her biological mother, who was accused of abandoning her while stealing a male child from a hospital. The Court applied the 'doctrine of tender years' to grant relief to the mother who is facing trial for commission of offence of kidnapping.

The Single Bench of Justice Sibo Sankar Mishra highlighted the deeply-entrenched societal biases which tend parents to prefer male child over a female child. The Judge observed –

“Deep rooted social malady to have a tendency of preference of a male child over a female child is the real cause of dispute. The facts of this case bring to light the deeply entrenched societal biases that prioritise male child over female child often driven by patriarchal and cultural practices that favours male lineage for inheritance, ritual and property right. The alleged action of the petitioners abandoning their biological daughter in favour of a male child reflects this regressive mindset.”

Case Background

An FIR was lodged by the complainant, inter alia, alleging that on 02.04.2024, he had admitted his new born male baby at the Special Care Unit, Balasore Headquarter Hospital and during the treatment in the afternoon of 04.04.2024, someone took away his son from the hospital bed.

The investigation revealed that the petitioners kidnapped the baby boy from the hospital after abandoning their own daughter. The abandoned female infant of the petitioners was, therefore, given in the custody of an agency and the petitioners were prosecuted for the offences under Sections 451 (house-trespass in order to commit offence punishable with imprisonment) and 363 (punishment for kidnapping) of the IPC.

After filing of the charge-sheet against the petitioners and upon initiation of trial, they made an application seeking custody of their own biological daughter, which was denied by the trial Court citing lack of jurisdiction. Being aggrieved, they filed this petition impugning the trial Court's order.

Contentions of Parties

By relying upon Section 30 of the Juvenile Justice (Care and Protection of Children) Act, 2015 ('the 2015 Act'), it was argued on behalf of the petitioners that the biological parents of a child of nine months are automatically entitled for the custody, even in the peculiar factual situation of the instant case.

The counsel appearing for the petitioners cited the view expressed by the Andhra Pradesh High Court in L. Chandran v. Venkatalakshmi & Anr. that a 'child' is a person within the meaning of Article 21 of the Constitution. It has, therefore, right to life as guaranteed by Article 21. The word 'life' should be understood in this context as expansively as it has been understood in other contexts as comprehending more than mere animal existence.

He, thus, argued that depriving an infant from the breast-feeding of his/her mother is a direct violation of rights enshrined under Article 21. Therefore, till the trial is concluded, the right of the infant baby girl should not be taken away.

On the other hand, the State opposed the grant of custody to the petitioners, specifically taking into consideration the conduct of the petitioners and the safety of the girl child.

Court's Observations

The Court held that the right to life guaranteed under Article 21 includes the right of the minor child to be cared for, nurtured and brought up in a loving and protective environment.

“The denial of custodial rights to the biological parents violates the constitutional rights of the child and the parents as well. Moreover, there is no evidence to suggest any incapacity or unfitness of the petitioners to provide a safe and nurturing environment. The welfare of the child would be best served by granting custody to the petitioners, ensuring her holistic development in the care of her biological parents,” it added.

Justice Mishra referred to Section 40 of the 2015 Act to hold that the natural or biological parents of the child have the superior right of custody over others.

He further referred to the judgment of the Karnataka High Court in the case of Husna Banu v. State of Karnataka which held that breast-feeding is an inalienable right of lactating mother, so is the right of a suckling infant for being breast-fed. It had further ruled that this important attribute of motherhood is protected under Article 21.

The Court also relied upon the observations made by the Punjab and Haryana High Court in Kamlesh Rani v. State of Punjab & Ors. wherein the biological mother's indefeasible right to ask for interim restoration of custody of her minor boy, in order to ensure befitting nourishment needed for the suckling infant, was emphasized.

Reference was further made to Section 3(ix) of the 2015 Act which underlines that all decisions regarding a child shall be based on the primary consideration that they are in his/her best interest and to help him/her attain full potential.

Doctrine of 'Tender Years'

Above all, the Court invoked the doctrine of 'tender years' which presumes that during a child's tender years, the mother has the superior skills to care for the child and therefore, she should have custody.

“This Court is of the view that the right of the child precedes over the guilt of the parents. The inalienable rights of the infant child supersede all the attending adverse circumstances alleged against the biological parents of the baby. Notwithstanding the pendency of the criminal proceeding, the petitioners are entitled to claim of custody of the infant being biological parents under the 'tender years doctrine',” it held.

The Court had due regard for the attending circumstances which unfolded a very grim situation where a mother abandoned her own biological daughter so as to get an infant son and even proceeded to take the infant out of his parents' custody without their consent.

However, the Bench stressed the societal maladies which led the mother to commit such illegal acts. It emphasized the deeply-rooted societal bias in favour of a male child over female. Notwithstanding the above, the Court said that it must exercise caution in allowing such societal prejudices to overshadow the fundamental right and welfare of the child.

“While the circumstances surrounding the abandonment of the female child are grave, it is equally important to recognize the maternal instinct and the natural bond between a mother and her child,” it added.

It reiterated that the welfare of the child is of paramount importance, which takes precedence over all other considerations including allegations of wrong doings against the parents and thus held –

“The “tender years doctrine” mandates the custody of a young child especially an infant should be 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.”

Hence, balancing the best interest of the child vis-à-vis the illegal acts committed by the mother, the Court was of the considered view that the infant girl's custody must be vested with the biological mother. However, as a precautionary step, it outlined the following conditions –

• Regular inspections shall be conducted by members of the Child Welfare Committee to ensure the safety and protection of the child.
• Continuous evaluations of the child's physical health and general well-being by the Child Welfare Committee shall be done.
• Petitioners shall cooperate with the CWC and comply the conditions imposed by the Child Welfare Committee.
• CWC may facilitate therapy and provide support to petitioner-parents as it falls within its mandate to ensure the welfare of the child and address the underlying issues that may impact child's upbringing.
• Assessment of parental behaviour towards the child, taking into consideration their previous conduct of abandonment and neglect may be kept in mind to impose necessary condition.

Accordingly, the Court ordered restoration of custody of the infant with the biological mother/petitioner within three days. It, however, made clear that the CWC shall be at liberty to move before the trial Court to recall order of the custody of the child in the event the welfare and protection of the child is found to be compromised at any point of time.

Case Title: Sumatimani Sau & Anr. v. State of Odisha & Ors.

Case No: CRLMC No. 4792 of 2024

Date of Judgment: January 29, 2025

Counsel for the Petitioners: Mr. P.K. Parhi, Advocate

Counsel for the State: Ms. Sarita Maharana, Addl. Standing Counsel

Citation: 2025 LiveLaw (Ori) 16

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