Kerala High Court slams Child Welfare Committee for morally biased judgment against infant's mother

The Kerala High Court recently pulled up the Child Welfare Committee (CWC) for passing orders in child custody matters based on moral grounds rather than in the best interest of the child. .The Committee drew the ire of the Court after a petition was moved by a woman to quash a CWC order granting custody of her child to the child's father. In said order, the CWC had made moral judgments against the woman because she had left her husband and moved away with their then three-month-old infant. The CWC also commented on the fact that the woman later eloped with another man. .Single-judge Justice VG Arun opined that the findings of the CWC was based on the prejudices of its members."This Court in Aneesa F v Shafeekmon KI has held that the moral judgment reflected in orders would defeat the objective of inquiry in matters of this nature. 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 moral standards of the members, the petitioner 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 in its judgment. .Personal moral values always result in biased judgments.Kerala High Court.The Court also deprecated the CWC for ignoring the fact that the child was being breastfed. Therefore, denying the mother access to the child violated the child's rights under Article 21 of the Constitution of India, the Court observed. "The counsel for the petitioner (mother) 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. Our Constitution also imposes a duty on the State to raise the level of nutrition, which implicitly support breastfeeding," the Court stated. .Our Constitution also imposes a duty on the State to raise the level of nutrition, which implicitly support breastfeeding..Moreover, the Court observed that as per the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, the CWC has the right to decide on custody of children only if both parents are unable or unwilling to look after the case. In the present case, however, both parents were willing and able to take care of the child."The parens patriae principle would enable intervention by the CWC for protecting the child and acting as its parent only when the biological parents fail to take care and protect the child," the Court observed. .Considering the fact that the CWC had ignored such crucial factors, the Court allowed the mother's petition, quashed the CWC order, and ordered that the custody of the child be handed over to her immediately."It is disheartening to note that by reason of the impugned order, the baby is separated from its mother for the past almost one month, denying the care, comfort and love which is most crucial at this stage," the Court added. .[Read Judgment]