The Kerala High Court (file)
| Photo Credit: R K Nithin

Kochi:

A mother’s right to breastfeed and that of a baby to be breastfed are facets of the right to life under Article 21 of the Constitution, the Kerala High Court said on Friday while quashing an order of a Child Welfare Committee (CWC) handing over custody of a breastfeeding infant to the father.

The CWC had handed over custody of the baby to the father as it was of the view that the infant would not be safe with its mother as she had eloped with her father-in-law.

Quashing the CWC’s decision and directing that the child be handed over to the mother, Justice V G Arun said the committee’s order reflects only the “moral bias” of its members.

The court further said that the CWC found the mother unfit “based on the predilections of its members”.

“The one and only concern of the committee should be the best interest of the child. That the mother of the child has chosen to live with a person other than her husband is not the committee’s concern.” “Judged by the moral standards of the members, the petitioner (mother) may not be a good person, but that does not make her a bad mother. Personal moral values always result in biased judgments. Unfortunately, the order reflects nothing other than the moral bias of the committee members,” the court said.

The court also expressed surprise that the CWC did not take into account the fact that the infant was being breastfed “while hastily granting custody of the child to the 3rd respondent(father)”.

“The counsel for the petitioner is correct in her submission that, severance of a one year and four month old baby from its mother violates her right to breastfeed the baby and that of the baby to be breastfed, such right being a facet of right to life under Article 21 of the Constitution,” the court said.

It also termed as “disheartening” the outcome of the CWC order which resulted in the infant being separated from its mother for almost a month, “denying it the care, comfort and love which is most crucial at this stage”.

The court also observed that the committee’s role would arise only when both parents of a child are not in a position to take care of him or her.

“The CWC having failed to consider these crucial factors, the impugned order cannot withstand the scrutiny of law.” “… the impugned order is passed in violation of the principles of natural justice, thereby impinging upon the fundamental rights of the petitioner as well as the child,” the court said.

The order came on the mother’s plea, filed through advocate Bhanu Thilak, seeking custody of the infant and challenging the CWC order.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)

Kolkata:

The Kerala High Court has held that having sexual intercourse or exhibiting a naked body before a minor amounts to sexual harassment of the child and is punishable under the Protection of Children from Sexual Offences (POCSO) Act.

The ruling by Justice A Badharudeen came on a plea by a man seeking quashing of the case against him for various offences under the IPC, POCSO Act and the Juvenile Justice Act.

The man was accused of having sexual intercourse with the minor’s mother in a lodge without locking the room and then beating up the boy, who saw the act, for questioning the same.

The accused-petitioner, in his plea, claimed that none of the offences were made out against him.

The High Court held that when a person exhibits a naked body to a child, the same is an act intending to commit sexual harassment upon a child.

Therefore, the offence punishable under sections 11(i) (sexual harassment) read with 12 (punishment for sexual harassment) of the POCSO Act would be attracted.

“In this case, the allegation is that the accused persons engaged in sexual intercourse after being naked, even without locking the room and allowed the entry of the minor in the room, so that the minor could see the same.

“Thus, prima facie, the allegation as to commission of offence punishable under sections 11(i) read with 12 of the POCSO Act, as against the petitioner (accused man) in this case is made out,” the High Court said.

It also said that since the man allegedly beat up the child and the minor’s mother did not try to stop the same, therefore, the offences under sections 323 (Punishment for voluntarily causing hurt) and 34 (common intention) were also attracted.

The HC directed that the man face trial for the offences under the POCSO Act and sections 323 and 34 of the IPC.

It, however, partly allowed his plea and quashed the criminal proceedings against him for the offences under section 294(b) (sings, recites or utters any obscene song, ballad or words, in or near any public place) and 341 (punishment for wrongful restraint) of the IPC and section 75 of the JJ Act, saying that those offences were not made out.

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)