The principle of distributive justice aims to bridge the gap between “have and have nots: Karnataka High Court

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF SEPTEMBER 2021 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.16729 OF 2021WRIT PETITION NO.15044 OF 2021IN W.P.NO.16729 2021: BETWEEN: SHO CHAMARAJPET POLICE STATION HIGH COURT BUILDINGS BANGALORE 560 001. SMT. HUSNA BANU W O JAVEEN PASHA AGED ABOUT 28 YEARS R AT NO.32 1ST CROSS SUBHANIYA MASJID JJR NAGAR BANGALORE SOUTH 560 026. …PETITIONER BY SRI. SIRAJUDDIN AHMED ADVOCATE) 1 . STATE OF KARNATAKA 2 . CHAIRMAN CHILD WELFARE COMMITTEE BY SRI. VINOD KUMAR AGA FOR R1 SRI. S.SUBRAMANYA ADVOCATE FOR R3) SMT. ANUPAMA DESAI W O RAO SAHEB DESAI R AT NO.98 WARD NO.3 MALAGITTI KOPPAL 584 116. VIDE COURT ORDER DATED 20 9 2021) DR. MH MARIGOWDA ROAD NEAR KIDWAI HOSPITAL BANGALORE 560 029. 2 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO HANDOVER THE CUSTODY OF THE TRACED OUT CHILD MOHAMMED ARHAAN TO THE PETITIONER AS SHE IS THE BIOLOGICAL MOTHER WITHOUT ANY FURTHER DELAY. IN W.P.NO.15044 2021: BETWEEN: WIFE OF RAOSAHEB DESAI AGED ABOUT 38 YEARS SON OF SWAMYRAO DESAI AGED ABOUT 46 YEARS BOTH RESIDING AT NO.98 WARD NO.3 MALAGITTI KOPPAL. …PETITIONERS 1 . SMT. ANUPAMA DESAI 2 . SRI. RAOSAHEB DESAI BY SRI. VENKATESH PRASAD.R ADVOCATE AND SRI. S. SUBRAMANYA ADVOCATE) 1 . THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA BANGALORE 01. 2 . DEPARTMENT OF WOMEN AND 3 . CHILD WELFARE COMMITTEE DR. M.H. MARIGOWDA ROAD NEAR KIDWAI HOSPITAL BANGALORE 29 REP. BY ITS CHAIR PERSON. …RESPONDENTS CHILD DEVELOPMENT FIRST FLOOR MS BUILDING DR. B.R. AMBEDKAR VEEDHI BANGALORE 01. REP. BY ITS SECRETARY. THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR ENTIRE RECORDS PERTAINING TO THE PETITIONER FILED IN THE SAID 3 HUMNA BANU ON THE FILE OF R 3 QUASH THE IMPUGNED NOTICE DTD. 12.08.2021 ISSUED BY THE R 3 THROUGH THE JURISDICTIOINAL POLICE TO THE PETITIONERS WITH OUT CONSIDERING THE APPLICATION FILED BY THEM AND PROVIDING AN OPPORTUNITY OF BEING HEARD TO THE PETITIONERS VIDE ANNX B AND ETC. THESE WRIT PETITIONS COMING ON FOR ORDERS THIS DAY THE COURT MADE THE FOLLOWING: These two cases involve rival claims for the custody of a toddler between a genetic mother and a foster mother this child is christened by the genetic parents as “Master Mohammed Arhaan” and later named by the foster mother as “ADWIK”. In a sense this matter reminds of the Jewish King Solomon who resolved such a dispute centuries ago and handed the child to the true mother after wisely identifying her and sent the pseudo mother to the gaol however that is not much the case here and what pleasantly surprises the Court is the grace with which these two gentle women two different religious backgrounds conducted themselves during the course of proceedings. 2. With the above prelude let me advert to the brief facts now. The case in W.P. No. 16729 2021 is 4 filed by the genetic mother of the child namely Smt. Husna Banu it is essentially for the custody of the child which has been with the foster mother Smt. Anupama Desai for a year or so there was a Habeas Corpus case filed by the genetic mother in W.P.(H.C.) 60 2020 which eventually resulted in the child being traced at the lap of foster mother the Chamrajpet Police Bengaluru having registered Crime No. 54 2020 are investigating into the matter is not much relevant for adjudication here. 3. The companion case in W.P.No. 15044 2021 is filed by the foster mother & her husband wherein they lay a challenge to the Police Notice dated 12.08.2021 whereby they have been directed to produce the child before the Child Welfare Committee on 18.08.2021 this notice owes its origin to the instruction of the said Committee issued to the Police on the eve strangely the genetic parents of the child do not figure as respondents in this case however both the battling parties being 5 before the Court the “clubbed cases” the arguable ground of non impleadment of proper necessary party pales into insignificance. 4. Both the writ petitions are taken together for disposal at the request of Bar this Court vide interim order dated 21.09.2021 had issued the direction keeping in view the concerns expressed by the genetic parents: .... Learned counsel appearing for the petitioner in the connected case Sri. Subramanya S submits that his client and the baby shall be present before the Court on 24.09.20021 at 10:30 a.m. This Court very reluctantly adjourns the matter to Friday with the rider that in the event the respondent No.3 is not here with the baby she runs the risk of being arrested and brought before the Court since the question of child s safety is involved in the matter. The jurisdictional Child Welfare Officer shall keep vigilance on the movement of respondent No.3 her family and the baby in question the said Officer will have all powers as are required for accomplishing this task. Registry to hand a copy of this order to the learned AGA who in turn shall hand it to jurisdictional Police with instructions to keep co vigilance with the Child Protection Officer as mentioned above." 6 In due obedience to the above direction the foster mother appeared before the Court along with the child this day. 5. The counsel for foster mother passionately argues for the dismissal of writ petition of the genetic parents and for allowing the one filed by his client the gist of his argument is that: his client is absolutely innocent of the allegations made against her she is only a victim of circumstances she having fostered the child all these months abundant with love affection & care should retain & rear it that the genetic mother already has two children whereas the foster mother has none a child well fostered for long cannot be parted away to the genetic mother without causing enormous violence to it in matters of custody interest of the child is paramount and therefore the claims founded on genealogy per se do not merit favour in support of his submission he cites episodes from Bhaagavatam and mentions about Devaki i.e. the genetic mother of Lord Krishna permitting 7 Yashoda i.e. the foster mother to retain custody of Infant Krishna. 6. The learned advocate appearing for the genetic mother per contra contends that in matters of custody of the child as between the parents the above argument of foster mother may be true however as between a genetic mother and a foster one the claim of the latter should yield to that of the former he also notifies to the Court the agony which the genetic parents of the child have undergone since a year or so he also highlights the difficulties of a lactating mother from whom the suckling infant is kept away thus he seeks dismissal of the other petition and allowing of his clients’. 7. I have heard the learned advocates appearing for the parties and perused the petition papers peculiarity of the case had generated a charged atmosphere in the Court Hall for some time learned members of the Bar namely Smt. Rashmi Patel Smt. Shahida Shehnaz Smt. Sunanda Rathod M s C.S.Prasanna Kumar Shridhar Pradhu & B.S 8 Nagaraj on request rendered a valuable assistance in the matter. This Court is of a considered opinion that the custody of the minor child needs to be given to the genetic mother for the following reasons: a) The child in question took birth in a maternity home in Bengaluru city in the last summer and thus it is only a toddler as yet this child having been lifted from the cradle of the hospital allegedly by some unscrupulous persons ultimately landed on the lap of foster mother is not in dispute shorn of the pleadings it is submitted at the Bar that the foster mother is only an innocent victim of circumstances that was her case too whatever be the epicenter of the lis the undisputed fact remains that Smt. Husna Banu is the DNA tested genetic mother of the child as between the genetic mother and the foster mother the claim of the former should have priority over the latter subject to all just exceptions into which argued case of the foster mother is not shown to fall this augers well with reason with law and with justice. 9 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 broadnorm that in the matters of child custody the claim of the strangers should yield to that of the genetic parents gains support from TEJASWINI GAUD vs. SHEKAR JAGADISH PRASAD TEWARI 7 SCC 42 the Apex Court in the said case observed as under: the passage of Taking away the child from the custody of the appellants and handing over the custody of the child to the first respondent might cause some problem initially but in our view that will be neutralized with However till the child is settled down in the father’s house the appellants No.2 and 3 shall have access to the child initially for a period of three months for the entire day i.e. 08.00 AM to 06.00 PM at the residence of the first respondent. The first respondent shall ensure the comfort of appellants No.2 and 3 during such time of their stay in his house. After three months the appellants No.2 and 3 shall visit the child at the first respondent’s house from 10.00 AM to 04.00 PM on Saturdays and Sundays. After the child completes four years the appellants No.2 and 3 are permitted to take the child on every Saturday and Sunday from the residence of the father from 11.00 AM to 05.00 PM and shall hand over the 10 custody of the child back to the first respondent father before 05.00 PM. For any modification of the visitation rights either parties are at liberty to approach the High Court". In all civilized jurisdictions the rules of international law animate the norms of domestic law unless they are inconsistent: vide JOLLY GEORGE VERGHESE vs. BANK OF COCHIN 2 SCC 360 the principle of “the best interest of the child” is enshrined in the International Convention on the Rights of the Child 1989 Article 3of this Convention provides: …in all actions concerning children whether undertaken by public or private social welfare institutions law administrative authorities or legislative bodies the best interests of the child shall be a primary consideration . . .” Similarly Article 7(1) of the Convention says: “The child shall be registered immediately after birth and shall have the right from birth to a name the right to acquire a nationality and as far as possible the right to know and be cared for by his or her parents”. Article 8&of the Convention provide for the State Parties to respect the right of child inter alia to preserve its identity ‘name and family relations as recognized by 11 law’. It also provides that where a child is illegally deprived of some or all of the elements of its identity State Parties shall provide appropriate assistance and protection with a view to re establishing speedily its identity. d) Article 25 of the Universal Declaration of Human Rights provides: “Motherhood and childhood are entitled to special care and assistance…”. Article 24(1) of the International Covenant on Civil and Political Rights ICCPR 1966) recognizes right of the child to the measures of protection as are required by its status as a minor and the correlative duty resting on the shoulders of its family society and the State. In October 1979 a Joint WHO UNICEF Meeting on Infant & Young Child Feeding adopted the following statement: is an integral part of the reproductive process the natural and ideal way of feeding the infant and unique biological and emotional basis for child development. … It is therefore a responsibility of society to promote breastfeeding and to protect pregnant and lactating mothers to many influences that would disrupt it”. 12 e) Further Section 3(ix) of the Juvenile Justice Care and Protection of Children) Act 2015 which enacts inter alia the above principle of paramount interest of the child reads as under: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of the child and to help the child to develop full potential." Section 2(9) of the said Act defines the term the best interest of the child to mean "…The basis for any decision taken regarding the child to ensure fulfillment of his basic rights and needs identity social well being and physical emotional and intellectual development." The modern Medical Science says breastfeeding is the best way to give babies all the necessary nutrients & antibodies which provide a vital shield of protection the experts in the field of neo natal science are of a considered opinion that the interaction between the lactating mother and the suckling infant involves a world of messages which is essential for the intellectual & emotional development of the child WHO recommends exclusive breastfeeding until the baby 13 attains the age of at least six months the research also shows that the adolescents & adults who were breastfed have less chance to be overweight & obese and that they demonstrate better IQ test results breastfeeding lowers the risk of breast & ovarian cancers diabetes & post partum depression according to Yukie Mokuo of the UNICEF. g) 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. 14 h) The contention of learned counsel appearing for the foster mother that his client should be permitted to retain the custody of the child consistent with what Devaki Maa allegedly did qua Yashoda Maa as in Bhaagavatam is bit difficult countenance no authoritative text of the episode is produced to show that there was any dispute of the kind between these two Women of Grace in the era that is long gone by in such matters unsubstantiated episodes from some history or mythology do not much guide the decision making process ordinarily scriptures cannot be cited as precedents or as instruments having force of law notwithstanding the light they throw when the path we tread is shrouded in darkness in matters like this scriptural texts are not treated as edicts of law unless they are legislated expressly or by necessary implication or otherwise recognized what a great American Judge of yester century Justice Oliver Wendell Holmes Jr. had profoundly observed Lochner v. New York 198 US 45 is worth 15 . .This case is decided upon an economic theory which a large part of the country does not entertain. . .It is settled by various decisions of this court that State Constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious . . . The Fourteenth Amendment does not enact Mr. Herbert Spencer s Social Statics . . . " i) As to what great poets said about motherhood: It is not impertinent to quote the poem My Mother penned by a Victorian poetess Ann Taylor 1782 1866) of the "Twinkle Twinkle Little Star" fame it touchingly expresses what a true mother means to a Who sat and watched my infant head When sleeping on my cradle bed tears of sweet affection shed My Mother. When pain and sickness made me cry Who gazed upon my heavy eye And wept for fear that I should die My Mother . . ." Similarly a 1860 poem of Oliver Wendell Holmes Sr. “A Mother’s Secret” is worth mentioning for its brevity 16 beauty & emotive content: “ …Youth fades love droops the leaves of friendship fall A mother’s secret hope outlives them all”. j) The contention of counsel for the foster mother that she does not have any children whereas the genetic mother has already two at home and therefore the custody of this child should be allowed to continue with his client is ludicrous 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 with out experience that a genetic mother treats all her children as being an integral part of her body & soul regardless of what the children do to her this contention of foster mother is abhorrent to the very notion of motherhood. 17 k) The foster mother now being convinced of legitimacy & priority of the claim of genetic mother has filed a Memo dated 24.09.2021 in the open court which reads as under: The Third Respondent has this date handed over the custody of the child Adwik to the petitioner herein. Therefore the above case may be closed handing over of custody may be taken note off in the interest of justice" She also gracefully delivered the custody of the child to its genetic parents the genetic mother too with equal grace states that the foster mother may see the child whenever her heart so desires 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. In the above circumstances these Writ Petitions are disposed off there is & shall be no cause of action 18 against the foster parents in civil or criminal law concerning the alleged kidnapping of the child. The observations hereinabove made being confined to the disposal of these two Writ Petitions shall not influence the collateral proceedings taken and or to be taken against others. Before parting with this matter this Court places on record its deep appreciation for the able assistance rendered by its official Research Assistant cum Law Clerk Mr. Faiz Afsar Sait and the Law Intern Mr. Rithvik Mathur. Costs made easy. Sd JUDGE 

Summary: In a civilised society, it was unfortunate that an innocent child was left un-breasted because the lactating mother was unable to access her child. Such an opinion was held by The Hon’ble High Court of Karnataka, at Bangaluru before the Hon’ble Mr. Justice Krishna S. Dixit in the matter of  Smt Husna Banu V/S State Of Karnataka [WP No. 16729 of 2021(GM Police) C/W WP No. 15044 of 2021(GM Police)].  The facts of the case are associated with the petitioner who had filed a writ petition under articles 2206 and 227 of the Indian Constitution, prayed to the respondents to hand over the child Mohammed Arhaan’s custody to the petitioner as she’s her biological mother. In such a case, it appeared that there was an involvement of rivalry between the foster mother and the biological mother. The child was with the foster mother for about a year. A writ petition was also filed by the foster mother and her husband [WP No. 15044 of 2021] dated 12.08.2021. Further, both the petitions, by the appeal of the Bar, were taken together. The learned counsel, representing the foster mother contended that the allegations made against the foster mother were fallacious and that the foster mother was a victim of circumstances. Further, the learned counsel stated that the child was fostered well with ample love and care; also the biological mother have two children while the foster mother had none.  The learned counsel, who represented the biological mother submitted that the claim of biological was literal. He also stated that his client had suffered agony for a year because of her child being kept away from her. Stating the difficulties that a mother could face when her suckling child was kept away, the counsel sought for dismissal of the appeal made by the foster mother. The Hon’ble Court after considering all the facts mentioned by both the parties held that the biological mother should be given custody of the minor child. The Hon’ble Court also stated that the foster mother can see the child whenever her heart desires. The Hon’ble Court mentioned that the kind gestures from both the women hailed from two different religious backgrounds were a rarity.   The Hon’ble High Court of Karnataka, at Bangaluru before the Hon’ble Mr. Justice Krishna S. Dixit, pronounced “In above circumstances, these Writ Petitions are disposed of; there is and shall be no cause of action against the foster parents in civil or concerning the alleged kidnapping of the child. The observations hereinabove made being confined to the disposal of these two Writ Petitions shall not influence the collateral proceedings taken and/or to be taken against others.”