Upholding Woman's Decisional Autonomy To Acknowledge Biological Father, Kerala High Court Restores Surrendered Child To Live-In Couple [Read Judgment]

A Division Bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath was faced with a case where a mother (Anitha) in a live-in relationship surrendered her child for adoption after her partner, the biological father (John), briefly broke the relationship. After they reunited, they approached the Court to have their child restored to them.

Treating Anitha as an unwed mother, the Child Welfare 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).

The Court's observations on a woman's decisional autonomy proved crucial in determining whether the biological father had a say in the procedure adopted to surrender the child for adoption.

On the woman's right to recognise the biological father

In a significant series of statements, the Bench highlighted that it is for the woman to recognize and decide on recognition of fatherhood of child.

"Where she chose to acknowledge the biological father at the time of conception, the father has every right to be recognized as a biological father", the court reasoned.It is for the woman to recognize and decide on recognition of fatherhood of child.

Explaining its stance in the context of the Act, the Court stated,

"In the context of what we said earlier, the married couple or unwed mother has to be understood in the backdrop of juvenile justice. If a mother does not acknowledge any sort of relationship with the biological parent such mother has to be treated as an unmarried mother for the purpose of Juvenile Justice. A woman becoming a mother in a rape or sexual assault, or accidentally, does not want to recognise or acknowledge biological father; in such circumstances, such mother has to be treated as an unmarried mother."

Against this backdrop, the bench of Justices Mustaque and Edappagath emphasized that a woman in a live-in-relationship who acknowledged the biological father of the child out of such a relationship, "will have to be treated as a married woman for the purpose of Juvenile Justice."

Drawing from Suchita Srivastava v. Chandigarh Administration, Revanasiddappa and Another v. Mallikarjun and Other, and the KS Puttaswamy v. Union of India, the Court highlighted that a woman's womb is precious possession of her personhood and no one can claim right over it; except with her consent.

Where she so consented and acknowledged the biological father, any such denial would amount to encroaching up on her decisional autonomy and freedom to choose, the Court underscored.

Expounding upon this theme, the Court pointed out that the Act intends to exclude only such biological father, who became father without the consent of the woman.

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."

On these, among other grounds, the Court found that the procedure adopted by the Committee in giving the child up for adoption was legally unsustainable. The Court ruled that the Committee had treated Anitha as an unwed mother, rather than as a married woman for the purpose of surrendering her child for adoption.

Because Anitha had acknowledged John as the biological father and their live-in relationship was recognised for the purpose of the Act, the procedure applicable to married couples would apply to them, the Court ultimately ruled.

Click here to download the order