This particular decision is upheld by the High Court of Punjab and Haryana through the division bench of Justice Sureshwar Thakur in the case of KAMLESH RANI v. STATE OF PUNJAB AND ORS (CRWP-4561-2022)
The instant petition cast under Articles 226/227 of the Constitution of India, the petitioner, the undisputed biological mother of an infant, aged four months, seeks restoration of his custody to her, through a writ of habeas corpus being made, upon co respondents No. 4 and 5, in whose purported illegal detention, the afore infant boy, is, at the instant stage. The biological mother of the infant boy aged about four months, solemnized marriage on 22.11.2017. On 04.01.2022, she give birth to the infant boy in a hospital, and, after a period of 20 days, she left along with the infant boy to her parental home, and, subsequently returned to her matrimonial home on 06.05.2022. She was at her matrimonial home, when co respondent No. 4, after snatching the infant boy from her, made her leave his house, on the pretext, that he had solemnized marriage with another woman Though, up till the age of seven years, ordinarily the custody of a minor boy or a minor girl, can be validly assumed by his or her natural mother, but yet the attempts qua assumption of custody by the aggrieved parent, through, a writ of habeas corpus being made, upon the parent concerned, in whose custody the minor boy or minor girl, aged about seven years rather is, imperatively enjoins upon, the habeas corpus Court, yet to become seized of cogent, and, tangible evidence supportive of the factum, that the parent concerned, in whose custody the minor child rather is, evidently not taking the optimum care of all his requirements relating to his nourishments, and, the best care giving to him by the parent concerned.
The High Court’s bench of Justice Sureshwar Thakur did clarify that the custody would be interim in nature for the limited purpose of breastfeeding the Child. In this regard, the Court also relied upon Article 25(2) of the Universal Declaration of Human Rights. Further, referring to the Karnataka High Court’s last year’s decision in the case of ‘Husna Babu v State of Karnataka’, the Punjab and Haryana High Court emphasized upon the biological mother’s indefeasible right to ask for interim relief in the form of interim restoration of custody of the minor boy. It may be noted that in Husna’s Case, the Karnataka High Court had said that breastfeeding a child is an important attribute of motherhood and is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India. The Karnataka High Court had also referred to the International Convention on the Rights of the Child, 1989, Article 25 (2) of the Universal Declaration of Human Rights and Article 24(1) of the International Covenant on Civil and Political Rights (ICCPR, 1966) which recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family, society and the State. Also, Section 3(ix) and section 2 (9) of the Juvenile Justice (Care and Protection of Children) Act 2015 were considered.
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JUDGEMENT REVIEWED BY NAISARGIKA MISHRA