It is a Birthright of the Child to be Embraced in the Warmth and Protection of Motherhood: Gujarat High Court

It is a birthright of the child to be embraced in the warmth and protection of motherhood. His foundation of health and key nutritive diet is mother’s milk. He cannot be deprived of these valuable requirements.”

The Gujarat High Court granted the custody of an 8-month old child to his mother observing that it is a birthright of the child to be embraced in the warmth and protection of motherhood. The Court made this observation while hearing a habeas corpus plea filed by the mother who prayed before the court that direction is issued for production and the custody of the corpus child who is 8 months old.

Brief Facts of the Case

  • The petitioner’s marriage (Mother of the Corpus child) was solemnized with respondent no.3 (Husband of petitioner and Father of the Corpus child) on 10.12.2018. The child was born on 29.02.2020.
  • According to the petitioner, respondent no.3 in a purchase of residential house had needed the monetary help which the grandfather of the petitioner had made twice. After the lapse of some time, when her grandfather needed money back, disputes had started.
  • She has also alleged of the absence of a healthy and cordial relationship between the spouses as also with the in-laws and as she was not allowed to go out anywhere or take with her son, who was only 5 months old when she was ill-treated and she gave a complaint on 06.08.2020 with Mahila Police Station, Lunavada, Dist. Mahisagar. However, the police had not acted upon the same.
  • The application under Section 97 of the Code of Criminal Procedure, 1973 was moved before the Court of learned Additional Chief Judicial Magistrate being Criminal Miscellaneous Application No.47 of 2020 which, on some technical ground, not entertained stating that for getting the custody of the child, the alternative remedy is available.
  • Hence, the applicant/petitioner/mother came before this Court for the reason that due to pandemic due to Covid19 virus, the Family Court is not taking up the matters of custody and it is almost impossible for the petitioner to reach to her child who is 7 months old. She has also further urged that the child is without her for the past more than three months and he is not also getting the mother’s milk which otherwise in his age, he is supposed to have.
  • It was, therefore, urged that on this ground alone, let the respondent be directed to handover the custody of the child which had been taken away against her will and wish.

Observation made by the Court

  • The Court relied upon the verdict in re Mc Grath(1893, 1 Ch.143), wherein
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     Lindsey, L.J. had Observed, “The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”
  • Observing the extremely young age of the child, “who simply could not be kept away from his mother“, the Court thought it necessary to exercise writ jurisdiction to accede to the request of the Petitioner.
  • For the better and the fullest health, growth and development of the child, ordinarily, mother’s custody is a must. The child has no voice of his nor means nor capability to knock the doors of justice for establishing his right to welfare.
  • It is an axiomatic truth that the parents, father and mother are required to look after the welfare of the minor and are treated as natural guardians and yet, the rigid insistence of statutory interpretation would not be welcomed for the welfare of such a young child. It is trite law that the custody of the child at least till the age of five needs to be with mother, it added.
  • The Court while considering the fact that the petitioner-mother was residing with the grandparents and also observing the worry of Respondent No.3 for the child, ordered that “Let him carry the child to the Petitioner mother and he can also ensure generating a conducive atmosphere, keeping aside all other contentious issues which make their relationship sore.”
  • Bearing in mind the disputes between the spouses, the Court was of the opinion that the matter required the presence of some authority which could monitor process of smooth handing over and, therefore, it was directed that the child shall be handed over to the petitioner – mother, at the earliest, at the District Court, Lunawada in presence of Learned Principal District Judge.

The Court directed that the same be done on or before 06.11.2020.

Case Name:  Divya kumari Kevalkumar Bhatt v. State Of Gujarat

 Citation: R/Special Criminal Application No. 6345 of 2020

It is a birthright of the child to be embraced in the warmth and protection of motherhood: Gujarat High Court

Also Read: [ Section 21A Of Hindu Marriage Act ] When The Parties Can Invoke The Power To Transfer Petitions?

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