By Niyati Dhiman

The Kerala High Court recently quashed an order by the Child Welfare Committee (CWC) that granted custody of a one-year-old child to the father. The court’s decision was based on the fact that the CWC had failed to consider the right of the mother to breastfeed her child, which is protected under Article 21 of the Indian Constitution, guaranteeing the right to life. The Court further emphasized that breastfeeding is implicitly supported by the Constitution, as it is tied to the state’s duty to ensure proper nutrition for children.

The case arose after the mother and father of the child had been living separately. The mother explained that she had left her husband due to constant physical and mental abuse. Initially, she lived with her mother, but later eloped with her husband’s stepfather. Upon learning this, the father filed a missing person complaint. After an investigation, the police found the mother, who was presented before the 1st Class Judicial Magistrate. The Magistrate recorded that the mother had voluntarily chosen to live with the person she eloped with, and she was set free. Following this, the Court directed the police to present the child before the CWC to determine custody.

The CWC awarded custody to the father, stating that the child was unsafe in the mother’s care due to her choice of living with someone other than her husband. The mother, dissatisfied with the decision, approached the Kerala High Court. Initially, she requested the right to breastfeed the child for at least half an hour each day, but later amended her petition to seek the quashing of the CWC’s custody order.

In its judgment, the Kerala High Court criticized the CWC’s decision for being influenced by the personal moral values of the committee members. The Court clarified that the CWC’s role is to focus on the welfare of the child, not to pass moral judgments on the mother’s personal choices. The Court pointed out that the mother’s relationship decisions should not undermine her ability to care for the child. Justice V.G. Arun observed that moral biases had tainted the CWC’s ruling, preventing it from making a fair assessment based on the child’s best interests.

The Court also highlighted the importance of following the principles set out in the Juvenile Justice (Care and Protection of Children) Act, which calls for treating all individuals with dignity while prioritizing the welfare of the child. If these principles had been followed, the Court argued, the CWC would have arrived at a different decision.

The Kerala High Court further examined the legal framework under the Juvenile Justice Act, particularly Section 2(14), which defines a “child in need of care and protection.” The Court explained that the CWC’s intervention is only warranted when both parents are unfit or incapable of caring for the child. In this case, the mother and father were both willing and able to care for the child, which made the CWC’s involvement unnecessary. The Court noted that the order had led to the separation of the child from the mother for almost a month, which violated the child’s rights.

In conclusion, the Kerala High Court quashed the CWC’s order, reinforcing the principles of natural justice and the fundamental rights of both the mother and the child. This ruling highlights the importance of ensuring that custody decisions are made impartially, with a focus on the best interests of the child, free from personal biases or moral judgments.

Case Title: XXX v. State of Kerala and Others

Citation: 2024/KER/79513

Click here to read/Download the judgment