Mother better custodian of breastfed child, says Bombay HC; orders man to hand over daughter to her

Mumbai: The Bombay High Court has ordered a man to hand over custody of his one-year-old daughter to his estranged wife, observing the child's best interests lie with the mother as she is still being breastfed.

The woman was forced to leave her matrimonial house after she was assaulted and since her sister-in-law snatched away her daughter, she could not take the child with her, a bench of Justices S V Kotwal and Sandesh Patil noted in the order passed on Tuesday.

"The child is dependent on the mother to some extent on breastfeeding. This is an important consideration," the HC said.

The order was passed in a habeas corpus (produce the person) plea filed by the woman seeking custody of her daughter.

The woman in her plea said she had to leave her matrimonial home to protect herself after she was physically assaulted by her husband and sister-in-law last month.

Since then, her one-year-old daughter has been in her husband's custody.

As per the plea, the couple got married in 2023, and since then, the woman was subjected to physical, emotional and mental cruelty.

The woman sought a direction to her husband to hand over the custody of their daughter to her, as the child was still being breastfed and hence needed her mother.

The man opposed the plea, claiming his wife left their home on her own and has refused to cohabit with him.

He further said that it would be in the best interest of the child to live with him as he was earning while his wife was not. As per law, the father, too, was a natural guardian of the child, the man said.

The high court, however, noted that since he was working, he would not be in a position to take care of the child and the woman, who is now living with her parents, would be in a better position to look after the infant.

The court also took note of WhatsApp messages sent by the man to his wife in which he used abusive and filthy language.

There is substance in the allegations of the woman that she was forced to leave her matrimonial house as she was scared for her safety, the HC said.

The woman's daughter was snatched from her by her sister-in-law, and hence she had not left the child willingly with her husband and his family, it noted.

In such matters, the best interest of the child has to be considered first and in the present case, the interest of the child is that her custody needs to be handed over to the mother, the HC said.

The bench directed the Vikhroli police in Mumbai to take steps to take the child's custody from the father and hand her over to the mother.