The Orissa High Court has restored the custody of an infant girl to her biological mother, who was accused of abandoning her while allegedly stealing a male child from a hospital. The Court applied the ‘doctrine of tender years’ to grant relief to the mother, who is currently facing trial for kidnapping.

The Single Bench of Justice Sibo Sankar Mishra highlighted the societal biases that drive parents to prefer male children over female children.

The Court observed, “Deep-rooted social malady to have a tendency of preference of a male child over a female child is the real cause of dispute. The facts of this case bring to light the deeply entrenched societal biases that prioritize male children over female children, often driven by patriarchal and cultural practices that favor male lineage for inheritance, ritual, and property rights.”

Case Background

An FIR was lodged by the complainant, alleging that on April 2, 2024, he had admitted his newborn male baby to the Special Care Unit at Balasore Headquarter Hospital. On April 4, 2024, someone took away his son from the hospital bed.

The investigation revealed that the petitioners had kidnapped the baby boy from the hospital after abandoning their own daughter. As a result, the petitioners were charged under Sections 451 (house trespass in order to commit an offence) and 363 (punishment for kidnapping) of the Indian Penal Code (IPC). The abandoned female infant was placed in the custody of an agency.

Following the filing of the charge sheet and the initiation of the trial, the petitioners sought custody of their biological daughter. The trial court denied their application for lack of jurisdiction, leading to this appeal.

Arguments by the Parties

Advocate Prasanna Kumar Parhi appeared for the petitioner, and Additional Standing Counsel (ASC) Sarita Maharana appeared for the respondent.

The petitioners, relying on Section 30 of the Juvenile Justice (Care and Protection of Children) Act, 2015, argued that biological parents of a nine-month-old child are automatically entitled to custody. They contended that depriving an infant of breastfeeding by the mother was a direct violation of Article 21 of the Constitution, which guarantees the right to life.

Citing precedents, the petitioners referred to L. Chandran v. Venkatalakshmi & Anr., where the Andhra Pradesh High Court emphasized that a child’s right to life encompasses more than mere existence. The Karnataka High Court in Husna Banu v. State of Karnataka had also affirmed that breastfeeding is an inalienable right of both the mother and the infant, which is protected under Article 21.

The State opposed the custody request, citing the conduct of the petitioners and the safety of the girl child. It argued that granting custody to individuals accused of abandonment and kidnapping could compromise the child’s welfare.

Court’s Observations

The Court emphasized that the right to life under Article 21 includes a child’s right to be nurtured in a loving and protective environment. It found no evidence of the petitioners’ incapacity to provide a safe home. The Court held, “The denial of custodial rights to the biological parents violates the constitutional rights of the child and the parents as well. The welfare of the child would be best served by granting custody to the petitioners, ensuring her holistic development in the care of her biological parents.”

Referring to Section 40 of the 2015 Act, the Court affirmed the superior right of biological parents over others in custody matters. It also relied on the Punjab and Haryana High Court ruling in Kamlesh Rani v. State of Punjab & Ors., which recognized the biological mother’s indefeasible right to seek interim restoration of custody for the nourishment and welfare of a suckling infant.

Application of ‘Tender Years Doctrine’

The Court invoked the ‘tender years doctrine,’ which presumes that a mother is best suited to care for an infant. The Court held, “This Court is of the view that the right of the child precedes over the guilt of the parents. The inalienable rights of the infant child supersede all the attending adverse circumstances alleged against the biological parents of the baby. Notwithstanding the pendency of the criminal proceeding, the petitioners are entitled to claim custody of the infant being biological parents under the ‘tender years doctrine.”

While acknowledging the gravity of the situation where a mother abandoned her biological daughter to obtain a male child, the Court emphasized the need to ensure that societal prejudices do not overshadow the fundamental rights and welfare of the child.

Court’s Decision and Safeguards

Balancing the best interests of the child against the mother’s actions, the Court restored the custody of the infant girl to her biological mother. However, it imposed precautionary measures:

1. Regular inspections by members of the Child Welfare Committee (CWC) to ensure the safety and protection of the child.

2. Continuous evaluations of the child’s physical health and well-being by the CWC.

3. Parental cooperation with CWC guidelines and imposed conditions.

4. Therapeutic and parental support facilitated by CWC to address underlying issues affecting the child’s upbringing.

5. Assessment of parental behavior based on their past conduct, with necessary conditions imposed as needed.

The Court directed that custody be restored within three days but clarified that the CWC could move the trial court for recall of the custody order if the child’s welfare was found to be compromised at any time. "The opposite party Nos. 7, 8 & 9 are directed to restore the custody of the girl child to the petitioners who are the biological parents within three days subject to any conditions as enumerated in the preceding paragraph in addition to any other condition deemed fit and proper in the facts and circumstances of the case. Accordingly, the CRLMC is allowed," the Court ordered.

Cause Title: Sumatimani Sau & Anr. v. State of Odisha & Ors. [CRLMC No.4792 of 2024]

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