IMPORTANT POINT
The court emphasized that custody decisions must prioritize the child's best interest and adhere to principles of natural justice, recognizing the mother's right to breastfeed as fundamental.

JUDGMENT :

(V.G. ARUN, J.)

A young lactating mother is before this Court, aggrieved by an order passed by the Child Welfare Committee (hereinafter referred to as “CWC”), finding her unfit to look after her baby aged just one year and four months and gave custody of the baby to her husband the 3rd respondent herein. The circumstances that led to the impugned order are as under;

The petitioner had married the 3rd respondent on 16.08.2019 and a child was born to them on 25.08.2023. The petitioner left the company of her husband on 15.11.2023, which according to her, was due to his constant harassment, both mental and physical. When the petitioner left his house, the 3rd respondent lodged a complaint before the police, resulting in registration of Ext.P1 FIR under Section 57 of the Kerala Police Act, 2011. After leaving her husband, the petitioner started to live with her mother. During her stay in her mother's place, she eloped with a person named Mohammed Rafi. On coming to know about this, the 3rd respondent lodged another complaint on 19.09.2024, which led to the registration of Ext.P2 FIR, again under Section 57 of the Kerala Police Act. During the course of investigation based on Ext.P2 FIR, police produced the petitioner before the Judicial 1st Class Magistrate, Nedumkandam on 22.09.2024. The Magistrate recorded petitioner's statement and on being convinced that she was aged 23 years and had chosen to live with Mohammed Rafi on her own volition, set the petitioner at liberty. By the same order, the Magistrate directed the police to produce the child before the Child Welfare Committee for appropriate orders, being of opinion that the child may be in need of care and protection. The petitioner and child were produced before the CWC on 23.09.2024 and custody of the child was handed over to the 3rd respondent, after obtaining Ext.P4 undertaking from him. Hence, this writ petition seeking the following relief;

“issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the 2nd respondent to handover the custody of the minor daughter Duva Mariam to the petitioner herein.”

2. When this writ petition came up for admission, learned counsel for the petitioner submitted that the baby is being breastfed by the petitioner and by reason of the impugned order, the child is deprived of mother's milk. Thereupon, this Court issued the following direction;

“3. As the petitioner submits that the minor child is still being breastfed, custody of the child shall be given to the petitioner for half an hour every day, from the premises of Kumily Police Station. During that period, the presence of a woman police constable and privacy for the petitioner to breastfeed the child shall be ensured.

4. The Station House Officer, Kumily Police Station is suo motu impleaded as the additional 4th respondent. Learned Government Pleader takes notice for the additional 4th respondent. The additional 4th respondent shall serve a copy of this order to the 3rd respondent and require him to produce the child between 10.00 am and 11.00 am every day.”

3. On receipt of notice from this Court, the 3rd respondent entered appearance and filed a counter affidavit along with a copy of order of the CWC dated 23.09.2024, containing the reasons for depriving the petitioner the custody of her baby. Thereupon, the petitioner amended the writ petition by incorporating a prayer for quashing that order (Ext.P8). A rough translation of the reasons stated in Ext.P8 order is given below;

“As the mother of the child has stated that she is not interested in living with the father of the child, and having left her house twice earlier with Mohammed Rafi (42 years), the step-grandfather of the child, the Committee is apprehensive about the safety of the child. Even though the father of the child expresses willingness to accept the child's mother if she severs her relationship with Mohammed Rafi, the lady is not prepared to do so and informed the Committ