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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Krishna S. Dixit, J.
Smt. Husna Banu, W/o Javeen Pasha – Petitioner
Versus
State Of Karnataka, SHO Chamarajpet Police Station and ors. – Respondents
Writ Petition No.16729, 15044 of 2021
Decided On : 24-09-2021
Juvenile Justice (Care and Protection of Children) Act 2015 - Section 3(ix) and2(9) - Constitution of India,1950 - Article 21 ,24(1), 25 (2) ,8 (1) ,8s (2) ,7(1) , 3(1) ,226 & 227 - Foster mother -These two cases involve rival claims for the custody of a toddler between a genetic mother and a foster mother; Court child is christened by genetic parents as “Master Mohammed Arhaan” and later named by foster mother as *ADWIK,J. In a sense court matter reminds of Jewish King Solomon - who resolved such a dispute centuries ago and handed child to true mother after wisely identifying her and sent pseudo-mother to gaol; however, that is not much case here and what pleasantly surprises Court is grace with which these two gentle women hailing from two different religious backgrounds conducted themselves during course of proceedings - |Whether undertaken by public or private social welfare institutions, court of law, administrative authorities or legislative bodies, best interests of child shall be a primary consideration –
Finding of the Court:
State Constitutions and State laws may regulate life in many ways, which we as legislators might think as injudicious Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics - foster mother now being convinced of legitimacy 8s priority of claim of genetic mother has filed a Memo in open court - Principle of distributive justice which intends to bridge gap between ‘‘haves and have nots” is not invocable, at least in court case; it is a matter of common knowledge consistent with out experience that a genetic mother treats ail her children as being an integral part of her body 8s soul, regardless of what children do to her - Court contention of foster mother is abhorrent to very notion of motherhood. - foster mother that she does not have any children whereas genetic mother has already two at home and therefore, custody of child should be allowed to continue with his client, is ludicrous; children ^re not chattel for being apportioned between their genetic mother and a stranger, on basis of their numerical abundance.
Result: Writ Petitions are disposed
ORDER :
These two cases involve rival claims for the custody of a toddler between a genetic mother and a foster mother; this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “ADWIK”. In a sense this matter reminds of the Jewish King Solomon (1010-931 BCE) who resolved such a dispute centuries ago and handed the child to the true mother after wisely identifying her and sent the pseudo-mother to the gaol; however, that is not much the case here and what pleasantly surprises the Court is the grace with which these two gentle women hailing from two different religious backgrounds conducted themselves during the course of proceedings.
2. With the above prelude, let me advert to the brief facts, now. The case in W.P. No. 16729/2021 is filed by the genetic mother of the child, namely Smt. Husna Banu (hereafter 'genetic mother'); it is essentially for the custody of the child which has been with the foster mother Smt. Anupama Desai (hereafter 'foster mother') for a year or so; there was a Habeas Corpus case filed by the genetic mother in W.P.(H.C.) 60/2020, which eventually resulted in the child being traced at the lap of foster mother; the Chamrajpet Police, Bengaluru having registered Crime No. 54/2020, are investigating into the matter, is not much relevant for adjudication here.
3. The companion case in W.P.No. 15044/2021 is filed by the foster mother & her husband wherein they lay a challenge to the Police Notice dated 12.08.2021 whereby they have been directed to produce the child before the Child Welfare Committee on 18.08.2021; this notice owes its origin to the instruction of the said Committee issued to the Police, on the eve; strangely the genetic parents of the child do not figure as respondents in this case; however both the battling parties being before the Court the “clubbed cases”, the arguable ground of non-impleadment of proper/necessary party pales into insignificance.
4. Both the writ petitions are taken together for disposal at the request of Bar; this Court vide interim order dated 21.09.2021 had issued the following direction, keeping in view the concerns expressed by the genetic parents:
This Court very reluctantly adjourns the matter to Friday with the rider that in the event the respondent No.3 is not here with the baby, she runs the risk of being arrested and brought before the Court since the question of child's safety is involved in the matter.
The jurisdictional Child Welfare Officer shall keep vigilance on the movement of respondent No.3, her family and the baby in question; the said Officer will have all powers as are required for accomplishing this task.
Registry to hand a copy of this order to the learned AGA who in turn shall hand it to jurisdictional Police with instructions to keep co-vigilance with the Child Protection Officer, as mentioned above."
In due obedience to the above direction, the foster mother appeared before the Court along with the child, this day.
5. The counsel for foster mother passionately argues for the dismissal of writ petition of the genetic parents and for allowing the one filed by his client; the gist of his argument is that: his client is absolutely innocent of the allegations made against her; she is only a victim of circumstances; she having fostered the child all these months abundant with love, affection & care should retain & rear it; that the genetic mother already has two children whereas the foster mother has none; a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to it; in matters of custody, interest of the child is paramount and therefore the claims founded on genealogy, per se, do not merit favour; in support of his submission he cites episodes from Bhaagavatam
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