Breastfeeding needs to be recognised as an inalienable right of lactating mother, and similarly, the right of the suckling infant for being breastfed has to be assimilated with the mother’s right as these are concurrent rights protected under right to life guaranteed under the umbrella fundamental rights as per Article 21 of the Constitution, the High Court of Karnataka has said.
Justice Krishna S. Dixit made these observations while hearing a peculiar case in which a genetic mother knocked the doors of the court for custody of child which landed on the lap of a foster mother after being lifted from the cradle by some unscrupulous persons a year ago from a maternity home in the city. “It is unfortunate that this pretty child for no fault remained without being breastfed, its lactating mother having had no access to it till now; in a civilised society such things should never happen,” the court said, while referring to International Convention on Rights of Child, Juvenile Justice (Care and Protection of Children) Act.
The foster mother, Anupama Desai of Koppal, sought to retain the child which she took care for over a year while citing the episodes from Bhaagavatam in which Devaki, the genetic mother of Lord Krishna, permitting Yashoda, the foster mother, to retain custody of infant Krishna. She had also pointed out that she does not have any children but the genetic mother had two at home.
Husna Banu, the DNA-tested genetic mother of the child, who was able to trace her lost toddler through the police after filing a habeas corpus writ petition in the High Court last year, affirmed her right over child citing difficulties of a lactating mother from whom the suckling infant is kept away.
‘Children not chattel’
Terming the foster mother’s contention as “abhorrent to the very notion of motherhood”, the court observed that “children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance; the principle of distributive justice which intends to bridge the gap between haves and have nots is not invocable, at least in this case.”
It is a matter of common knowledge consistent without experience that a genetic mother treats all her children as being an integral part of her body and soul, regardless of what the children do to her,” the court said.
A rare gesture
The foster mother in the case finally agreed to handover custody of the child to the genetic mother, who with equal grace offered that the foster mother could see the child whenever her heart so desires. The court said: “Such kind gestures coming from two women hailing from different religious backgrounds are marked by their rarity, nowadays.” This led to the legal battle for custody of the child being closed on a happy note.
The court freed the foster mother from all civil and criminal liabilities on accepting her claim that she was “only a victim of circumstance”.
