On 10th April 2021, Saturday the Hon’ble Kerala HC passed a historic ruling, stating that a child born in a live-in relationship would have to be treated as a child born to a married couple to grant a child for adoption.
The High Court bench while hearing the petition filed by a couple in a live-in relationship to reclaim their child who had been surrendered for adoption by the woman.
Needful to point out that the woman in the instant case had acknowledged her live-in partner as the biological father of their child. Subsequently, the Hon’ble bench while acknowledging the claim made out by the women ruled that the procedure employed by the Child Welfare Committee (hereinafter referred to as “CWC”) while giving Law does not differentiate unwedded couple and legally married couple to identify biological parents the child up for adoption was legally unjustifiable.
Moreover while pronouncing the verdict in the instant case the Hon’ble Bench also discovered that the procedure applicable to an unwedded mother alone was followed. Therefore the Hon’ble court while pronouncing the judgment holding that “it is legally unjustifiable as the child has to be treated as born to a married couple”.
Additionally, the Hon’ble court judgment in the instant case narrates that the woman gave her child up to a CWC moved by nervousness when her partner moved to another State and broke the relationship for a while. The couple’s relationship was opposed by their families since they belonged to different faiths. During this interval, in the due course, while making attempts to contact her partner, the woman handed over her child to the Committee.
In continuation, the Hon’ble court while pronouncing its judgment also highlights that women’s action of surrendering in no uncertain terms permitted the Committee to give the child in adoption. Additionally, the Hon’ble court stated that treating women as an unmarried mother, the Committee proceeded to give the child in adoption to a couple under provisions of the Adoption Regulations, 2017 and under Section 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (the Act).
In the due course, the woman and her partner after these advances in the law approached the Hon’ble High Court and moved a writ of habeas corpus, seeking the custody of their child. Subsequently, in no time, the Government Pleader and counsel appearing for the Committee submitted that the child had already been given in adoption likewise the Hon’ble Court opined that a writ of habeas would not lie since proceedings concluded under the Act “had legal color”.
The Hon’ble Court, however, with his power of suo motu converted the proceedings to a revision petition after which it was taken up by the Hon’ble Division Bench.
Needful to indicate that the Hon’ble Court while hearing the instant petition noted that there are two situations for surrender, one whereby a married couple surrendered their child for adoption and the second where an unmarried woman gave her child up for adoption, the Hon’ble Court while stating the above mentioned two situations posed the question of whether a couple in a live-in relationship could be equated to a married couple for surrender. On which the Hon’ble Court also is of pointed out that, “in the matter of married couple, the procedure ensures that both the parents execute a deed of surrender and; if the child born to a married couple and surrendered by one of the biological parents, and whereabouts of the other parent are 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. Additionally, the Hon’ble court gave light on the procedure and said that the procedure so followed mandates an inquiry to trace out the biological parents or the legal guardians.”
In continuation, the Hon’ble court stated that the Act primarily sought to protect the welfare of the child and that the prime aim of the law is restoration and protection of the child in need of care and protection. In addition to this, the Hon’ble also stated that the first right of restoration is with the biological parents of the child, and then adoptive parents, foster parents, guardians, and finally fit persons.
The Hon’ble bench also explained that a live-in couple had the right of restoration and that the parental right of biological parents is a natural right not preconditioned by the institutionalization of legal marriage. The Hon’ble Bench also detailed that, “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 continuation, the Hon’ble court stated that a couple in a live-in relationship acknowledges the mutual rights and obligations. It is more of a contract and offspring out of such a relationship is acknowledging biological parental rights of both.”
Hence the Hon’ble Court while concluding mentioned that “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.”
Application to the facts of the instant case the Hon’ble Court, therefore, noted that both biological mother and father of the child recorded themselves as a parent of a child and the child surname also reflected the name of the biological father.
Additionally, the Hon’ble court while pronouncing the judgment held that 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. In continuation, the Hon’ble court stated that “once it is discovered/detected that the child is born to a couple, for all practical purposes of Juvenile Justice Act, 2015 inquiry must be conducted to confirm if the child belonged to a married couple”.
The Hon’ble Bench ultimately underlined that any deed of surrender would have had to be signed by both parents. In the situation 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 necessary steps to be taken to find out the whereabouts of the biological parents.
In this respect, the Hon’ble Court also recorded that in the instant case, no such procedure was adopted. Admittedly, the procedure applicable to an unmarried mother alone was followed and that is legally unjustifiable as the child has to be treated as born to a married couple.
Lastly, the Hon’ble court stated that only after an inquiry about the whereabouts of parents was successfully done then only the child be deemed for adoption. Therefore, the Court ruled that the entire process followed in giving the child up for adoption was vitiated. Holding that the newly adoptive parents accrued no right since the process itself was illegal. And finally, the Hon’ble Court set aside the adoption and ordered that the child be restored to the biological mother and father of the child in the instant case.
