Breaking: JJ Act- Child Born In Live-in Relationship To Be Construed As Child Born To Married Couple: Kerala High Court-Read Judgment

In a momentous ruling, the Kerala High Court has recognised that a child born in a live-in relationship would have to be treated as a child born to a married couple for the purposes of surrendering a child for adoption. 

The High Court, through a Bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath was faced with a petition moved by a couple in a live-in relationship to reclaim their child who had been surrendered for adoption by the woman.

Pointing out that the woman had acknowledged her live-in partner as the biological father of their child, the Bench ruled that the procedure employed by the Child Welfare Committee while giving the child up for adoption was legally unsustainable. In its judgment, the Bench found that the procedure applicable to an unwed mother alone was followed.

"That is legally unsustainable as the child has to be treated as born to a married couple", Justices Mustaque and Edappagath hold in their judgment.

The Court's judgment narrates that the woman, Anitha(name changed by court to protect identity), gave her child up to a Child Welfare Committee (Committee), moved by anxiety when her partner John 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, between making attempts to contact her partner, Anitha handed over her child to the Committee in May last year, executing a Deed of Surrender in June.

The Court's judgment notes that Anitha's deed of surrender in no uncertain terms permitted the Committee to give the child in adoption in February 2021.

Treating Anitha as an unwed mother, the Committee proceeded to give the child in 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 (the Act).

After these developments, Anitha and John(name changed by court to protect identity) approached the High Court and moved a writ of habeas corpus, seeking the return of their child.

The Government Pleader and counsel appearing for the Committee submitted that the child had already been given in adoption and the Court opined that a writ of habeas would not lie since proceedings concluded under the 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's finding

Noting that there were two situations for surrender, one whereby a married couple surrendered their child for adoption and the second where an unwed woman gave her child up for adoption, the Court posed the question of whether a couple in a live-in relationship could be equated to a married couple for the purpose of surrender.

The Court pointed out,

"In the matter of married couple, the procedure ensures that both the parents execute deed of surrender and; if the child born to a married couple and surrendered by one of the biological parent, 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. This procedure mandates an inquiry to trace out the biological parents or the legal guardians."

Holding that the Act primarily sought to protect the welfare of the child, the Bench underscored that the prime 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.

Finding 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 institutionalization of legal marriage.

The Bench explained,

"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 the mutual rights and obligations. It is more of a contract. Offspring in such a relationship is acknowledging biological parental rights of both."

Therefore 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."

Application to the facts of the case

The Court therefore noted that both Anitha's and John's names were recorded in the birth certificate and that the child's surname also 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 held.

"Once it is found that the child is born to a couple, for all practical purposes of JJ Act, inquiry must be initiated as though the child belonged to a married couple", the Bench ultimately underscored. Thus, any deed of surrender would have had to be signed by both parents, it was stated. 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.

In this respect, the Court recorded,

"In this case, no such procedure was adopted. Admittedly, the procedure applicable to an unwed mother alone was followed. That is legally unsustainable as the child has to be treated as born to a married couple."

Only after an inquiry about whereabouts of parents was fulfilled could the child be deemed fit for adoption.

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.