Breastfeeding is the Fundamental Right of a Mother under Article 21 of the Indian Constitution: Justice K. S. Dixit

Petitioner Husna Banu moved to the Karnataka High Court under Article 226 of the Constitution of India in the case of Husna Banu v. The State of Karnataka & Ors. (2021) W.P. 16729/ 2021 to seek the custody of her child, Mohammed Arhaan because she allegedly is the true biological mother of the said child. Petitioner Anupama Desai, one of the respondents in the aforementioned case moved to the Karnataka High Court under Article 226 in the case of Anupama Desai & Anr. v. The State of Karnataka & Ors. (2021) W.P. 15044/ 2021 to call for the entire records pertaining to her in the former case whilst claiming the custody of the said child as her foster mother. The court decided to club the two writ petitions. The child in question was named Adwik by his foster mother. Husna Banu is the genetic mother of the child while Anupama Desai had been fostering the child for a year.

Husna Banu had filed the writ of Habeas Corpus (W.P. 60/ 2020) with the Karnataka High Court, wherein the Chamrajpet Police Station, Bengaluru (Crime Number 54/ 2020) traced the missing child to his foster mother and issued a notice on August 12, 2021, to produce the child before the Child Welfare Committee on August 18, 2021. Anupama Desai argued her innocence in the face of the allegations, wherein she claimed to have fostered the said child with love, affection and care; additionally, she posited that Husna Banu has two children while she has none. Anupama Desai claimed that the child is well taken care of and any attempt to reunite the child with his genetic mother will allegedly cause violence against the interests of the child. Advocate Sirajuddin Ahmed, appearing for Husna Banu, directed the attention of the court to the yearlong agony of the genetic mother whilst the suckling child had been allegedly kept away from his lactating mother.

Justice K. S. Dixit chose to reunite the said child with his genetic mother due to the following reasons:

  1. That the child was born in Bengaluru in a maternity home in 2020, wherein the toddler was allegedly taken from the hospital by some unscrupulous individuals, finally being handed to the foster mother, wherein the foster mother is an innocent victim of circumstances.
  2. That the claim over the child between the genetic mother and the foster mother prioritizes the claim of the genetic mother over the claim of the foster mother (stranger to the child in the eyes of the law) within the ambit of fairness and justice.
  3. That the Supreme Court in the case of Tejaswini Gaud v. Shekar Jagadish Prasad Tewari (2019) 7 SCC 42 held that taking the child from the custody of the appellants (strangers) to the custody of the residence of the first respondent (father of the child) is a problem that will be neutralized with the passage of time, wherein the appellants shall have comfortable access to the child for the initial three months from 08:00 A.M. to 06:00 P.M. every day, followed by visitation rights between 10:00 A.M. to 04:00 P.M. on Saturdays and Sundays only. Justice K. S. Dixit held that the custody with the genetic mother must be upheld.
  4. That Article 3, Section 1 of the International Convention on the Rights of the Child, 1989 enshrines the principle to uphold the best interests of the child in all actions concerning children in public social welfare institutions, private social welfare institutions, the court of law, legislative bodies, administrative bodies, etcetera.
  5. That Article 7, Section 1 of the International Convention on the Rights of the Child, 1989, upholds the right of a child to not only be cared for by his/ her parents but also know their parents. Article 8, Sections 1 and 2 of the convention provides the state to recognize and protect the familial relations of the child as recognized by law; additionally, the provision asks the state to provide appropriate assistance to speedily re-establish the elements of a child’s identity, including its familial relations in situations where it has been demolished illegally.
  6. That Article 24, Section 1 of the International Covenant on Civil and Political Rights, 1966 recognizes the right of the child to protection as required by its status as a minor from its family, society and the state, wherein it is the correlative duty of the family society and state to provide the said measures of protection.
  7. That the Juvenile Justice (Care and Protection of Children) Act, 2015 mirrors the aforementioned international conventions to create a consistency between the international law and domestic law, wherein the act requires all decisions in the context of a child to be made in the best interests of the said child to develop the child to its full potential (Section 3) whilst fulfilling its basic rights, identity, social well-being and physical, emotional and intellectual development (Section 2, Sub-Section 9).

In the present case, Justice K. S. Dixit held that breastfeeding provides the necessary nutrients and antibodies to the child, which not only protect the child but also develop the intellect of the child, wherein the judge quoted the World Health Organization’s guideline of exclusive breastfeeding for toddlers under the age of six months while quoting the research of Yukie Mokuo from UNICEF. Yukie Mokuo states that the prevalence of obesity, lower IQ, higher chances of breast & ovarian cancer, higher chances of diabetes are lowered among adults and adolescents who have been regularly breastfed during their infancy.

Justice K. S. Dixit held that breastfeeding is the fundamental right of a mother under the Fundamental Right of Article 21 of the Constitution of India while the right of an infant to be breastfed is fundamental too. The judge held that the child in question has not been breastfed due to the lack of access to his lactating mother; this is unfortunate per the judge.

The judge rejected the contention of Anupama Desai of not having any children as ludicrous as the genetic mother (having two children) treats all her children alike, as an integral part of her body and soul. Husna Banu told the court that the foster mother can see the child whenever her heart desires. The judge absolved the foster parents in any civil or criminal case concerning the alleged kidnapping of the child while delivering the custody of the child to the genetic mother.

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