In an important ruling, the Kerala High Court recognised a child born to a live-in couple to be treated as a child born to a married couple in regards to surrendering a child for adoption. The High Court bench — comprising of Justices A Muhamed Mustaque and Dr Kauser Edappagath — made the ruling while dealing with a petition moved by a live-in couple to reclaim their child who had been surrendered for adoption by the woman.
Ruling that the procedure used by the Child Welfare Committee (committee) while giving the child up for adoption was “legally unsustainable”, the bench pointed out that the woman acknowledged her live-in partner as the biological father of their child. The bench found that the procedure adopted by the committee applies only to an unwed mother alone.
The Court’s judgment says that the woman — Anitha (name changed by the Court to protect identity) — gave her child up to the committee as she was moved by anxiety when her partner — John (name changed) — moved to another state and broke the relationship for a while. The couple’s parents had opposed the relationship as they belonged to different faiths. During this interval, Anitha handed over her child to the committee in May 2020, executing a Deed of Surrender (deed) in June.
The bench notes that Anitha’s deed did not permit the committee to put the child up for adoption in February this year. Treating the woman as unmarried, the committee gave the child for adoption to a couple under provisions of the Adoption Regulations 2017 and Section 38 of the Juvenile Justice (Care and Protection of Children) Act 2015 (JJ Act)
Afterwards, Anitha and John approached the High Court and moved a writ of habeas corpus, for the return of their child. The counsel for the committee submitted that the child had already been adopted and the Court opined that a writ of habeas would not pass since proceedings concluded under JJ Act “had legal colour”. The Court, however, suo motu converted the proceedings to a revision petition after which it was taken up by the Division Bench of Justices Mustaque and Dr Edappagath.
The Court noted that there were two situations for surrender. Firstly, whereby a married couple surrendered their child for adoption and secondly, where an unwed woman gave her child up for adoption. The Court asked whether a couple in a live-in relationship could be equated to a married couple for surrender. “In the matter of married couple, the procedure ensures that both parents execute the deed of surrender. If the child born to a married couple, surrendered by one of the biological parents, while the whereabouts of the other parent is not known, the child shall be treated as an abandoned child and procedure under Regulation 6 (of the Adoption Regulations) will have to be followed. This procedure mandates an inquiry to trace out the biological parents or the legal guardians,” the bench said.
Adding that JJ Act primarily sought to protect the welfare of the child, the bench emphasised that the main aim of the law is restoration and protection of the child in need of care and protection. The first right of restoration was with parents, then adoptive parents, foster parents, guardians and finally fit persons. Claiming that a live-in couple had the right of restoration, the bench ruled that the “parental right of biological parents is a natural right not preconditioned by the institutionalisation of legal marriage”.
“Marriage as a social institution depends upon personal law or secular law like Special Marriage Act. It has no bearing on the concept of Juvenile Justice… In a live-in relationship, a couple acknowledges mutual rights and obligations. It is more of a contract. Offspring in such a relationship is acknowledging biological parental rights of both,” the bench explained. The Court concluded, “There is no difficulty in holding that a child born in a live-in relationship also has to be construed as a child born to a married couple.”
The Court noted that both Anitha and John’s names were recorded in the birth certificate and that the child’s surname reflected the name of the father. Since the couple acknowledged their relationship, it was not for the “committee to inquire about the legal status of the marriage, not being the competent authority to decide on such status”, the Court said.
The Court added that once it was found that the child is born to a couple, for all practical purposes of the JJ Act, an inquiry must be initiated as though the child belonged to a married couple. This means that any deed of surrender would have had to be signed by both parents. “Where both parents did not sign and the whereabouts of the other parent are not known, the child was to have been treated as an abandoned child and steps taken to find out the whereabouts of the biological parents,” the Court ruled.
The Court added that no such procedure was adopted in this case. The procedure applicable to an unwed mother alone was followed and that is legally unsustainable, as the child has to be treated as born to a married couple. Therefore, the Court ruled that the entire process followed in giving the child up for adoption was vitiated since only Anitha signed the surrender deed. Holding that the newly adoptive parents accrued no right since the process itself was illegal, the Court set aside the adoption and ordered that the child be restored to the couple.