The Gujarat high court said that being accepted in the warmth and security of motherhood is the birthright of a child because the mother's milk is the base of its health and nutrition.
With this observation, the Gujarat high court directed a man to hand over custody to the mother of his seven-month-old son, who knocked at the doors of the HC after she obtained no relief from the lower courts, which are not fully operational due to the situation of Covid-19.
The woman, who is from Lunawada, married a lawyer from Nadiad in this case in December 2018. In February, the couple had a son. The woman left her marital home as their relationship soured and returned to Lunawada, where she approached the police and then a lower court for her son's custody. The lower court redirected her to the family court for a custody suit, but she lodged a habeas corpus petition in the high court as family courts are not functioning.
She told the HC that for the past three months, her child had been living without her and that he had not received milk from his mother. This led Justice Sonia Gokani and Justice Nirzar Desai's bench to observe, "To be accepted in the warmth and protection of motherhood is a child's birthright." Mother's milk is his cornerstone for well-being and the main nutritious diet. These valuable conditions can not deprive him of them. For the better and the fullest health, growth, and development of the child, ordinarily, mother’s custody is a must.”
The court further said, “The child has no voice of his own, means or capability to knock at the doors of justice for establishing his right of 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, a 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 a child at least till the age of five needs to be with the mother.”
In view of the conflicts between the spouses, the Court was of the opinion that the matter required the presence of some authority that could control the smooth handing over the process and therefore ordered the child to be handed over to the petitioner-mother at the earliest in the presence of the Learned Principal District Judge at the District Court, Lunawada.
