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The Karnataka High Court recently held that breastfeeding is an inalienable right of a lactating mother and the same is protected as a facet of the right to life under Article 21 of the Constitution.

"In the light of domestic law and the international law as briefly discussed above, breastfeeding needs to be recognized as an inalienable right of lactating mother; similarly, the right of the suckling infant for being breastfed too, has to be assimilated with mother’s right; arguably, it is a case of concurrent rights; this important attribute of motherhood, is protected under the umbrella of Fundamental Rights guaranteed under Article 21 of the Constitution of India; it is unfortunate that this pretty child for no fault remained un-breastfed, its lactating mother having had no access to it till now; in a civilized society such things should never happen," the order passed by Justice Krishna Dixit of the High Court read.

These pertinent observations came in as part of a judgment passed in a dispute between the birth mother and the foster mother for custody of the child.

The child in question took birth in a maternity home in Bengaluru city in the last summer and was lifted from the cradle of the hospital allegedly by some unscrupulous persons.

Ultimately, the baby landed on the lap of the foster mother.

Meanwhile, there was a habeas corpus case filed by the genetic mother, which eventually resulted in the child being traced at the lap of the foster mother by the Chamrajpet Police, Bengaluru.

Since both, the genetic, as well as the foster mother, claimed custody of the child, the matter reached the doors of the High Court.

The counsel for the foster mother argued that she had cared and looked after the child for many months with love, affection and care and should, therefore, be allowed to retain the child.

Episodes from Bhagavatam was also relied upon by the counsel who argued that Devaki, i.e., the genetic mother of Lord Krishna had permitting Yashoda, i.e., the foster mother to retain custody of the infant Krishna.

On this aspect, the court said that in today’s era, unsubstantiated episodes from some mythology do not much guide the court’s decision making process.

“The contention of the learned counsel appearing for the foster mother that his client should be permitted to retain the custody of the child consistent with what Devaki Maa allegedly did qua Yashoda Maa, as mentioned in Bhaagavatam, is bit difficult to countenance; no authoritative text of the episode is produced to show that there was any dispute of the kind between these two Women of Grace, in the era that is long gone by; in such matters, unsubstantiated episodes from some history or mythology do not much guide the decision making process; ordinarily, scriptures.”

It was further submitted that the genetic mother already has two children while the foster mother has none.

This contention also did not rest well with the Single Judge, who opined that children are not chattel.

“The contention of counsel for the foster mother that she does not have any children whereas the genetic mother has already two at home and therefore, the custody of this child should be allowed to continue with his client, is ludicrous; children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance;..”

The court further held that the claim of strangers to the child would stand on a lesser footing when compared to the claim of genetic parents.

"The trouble with the case at hand is that it is of a kind not frequently recurring so as to enable any given Judge to profit merely by experience and thereby enable him to lay down thumb rules, especially when the elements involved are so complex; however a broad norm that in the matters of child custody, the claim of the strangers should yield to that of the genetic parents," the court said.

The rather poetic judgment of the court further noted that the foster mother has delivered the custody of the child to the genetic mother, who in turn, agreed that the foster mother may see the child whenever she desires.

Appreciating this, the court remarked,

“...such kind gestures coming from two women hailing from two different religious backgrounds, are marked by their rarity, nowadays; thus, this legal battle for the custody of the pretty child is drawn to a close with a happy note, once for all."

With these observations, the court disposed of the petition.

Advocate Sirajuddin Ahmed appeared for the genetic mother and Advocate S Subramanya appeared for the foster mother.

Case Name: Husna Banu vs State of Karnataka.