Kochi | A mother's right to breastfeed and that of a baby to be breastfed are facets of the right to life under Article 21 of the Constitution, the Kerala High Court said on Friday while quashing an order of a Child Welfare Committee (CWC) handing over custody of a breastfeeding infant to the father.
The CWC had handed over custody of the baby to the father as it was of the view that the infant would not be safe with its mother as she had eloped with her father-in-law.
Quashing the CWC's decision and directing that the child be handed over to the mother, Justice V G Arun said the committee's order reflects only the "moral bias" of its members.
The court further said that the CWC found the mother unfit "based on the predilections of its members".
"The one and only concern of the committee should be the best interest of the child. That the mother of the child has chosen to live with a person other than her husband is not the committee's concern."
"Judged by the moral standards of the members, the petitioner (mother) 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 said.
The court also expressed surprise that the CWC did not take into account the fact that the infant was being breastfed "while hastily granting custody of the child to the 3rd respondent(father)".
"The counsel for the petitioner is correct in her submission that, severance of a one year and four month old baby from its mother violates her right to breastfeed the baby and that of the baby to be breastfed, such right being a facet of right to life under Article 21 of the Constitution," the court said.
It also termed as "disheartening" the outcome of the CWC order which resulted in the infant being separated from its mother for almost a month, "denying it the care, comfort and love which is most crucial at this stage".
The court also observed that the committee's role would arise only when both parents of a child are not in a position to take care of him or her.
"The CWC having failed to consider these crucial factors, the impugned order cannot withstand the scrutiny of law."
"... the impugned order is passed in violation of the principles of natural justice, thereby impinging upon the fundamental rights of the petitioner as well as the child," the court said.
The order came on the mother's plea, filed through advocate Bhanu Thilak, seeking custody of the infant and challenging the CWC order.
