In a significant decision, the Karnataka High Court has held that breastfeeding is an inalienable right of lactating mother, protected as a facet of right to life under Article 21 of the Constitution [Husna Banu vs State of Karnataka].
Likewise, a suckling infant has the right to be breastfed and it is concurrent with the mother's right to breastfeed, single-judge Justice Krishna S Dixit ruled.
"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 said.
The Court was hearing dispute between the birth mother and the foster mother for custody of child.
The counsel for 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.
It was further submitted that the genetic mother already has two children while the foster mother has none.
In response, the advocate appearing for the genetic mother contended that in matters of custody of the child as between the parents, the above argument of foster mother may be true. However, between a genetic mother and a foster one, the claim of the latter should yield to that of the former.
The Court held that right of lactating mother to breastfeed her baby and the right of suckling infant to have mother's milk are protected under Article 21.
"It is unfortunate that the pretty child (in the present case) 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 Court said.
The Court also held that the claim of strangers to the child would stand on a lesser footing when compared to 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.
Karnataka High Court
The submission of the foster mother that she should be allowed to keep the toddler as she has no children was not appreciated by the Court.
"Children are not chattel for being apportioned between their genetic mother and a stranger, on the basis of their numerical abundance," the Court said.
Later, the Court was told 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.
Noting this, the Court said,
"...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 while thanking official Research Assistant-cum-Law Clerk Faiz Afsar Sait and the Law Intern Rithvik Mathur for their efforts.
Advocate Sirajuddin Ahmed appeared for the genetic mother and Advocate S Subramanya appeared for the foster mother.