[Adoption under Juvenile Justice Act] Child born out of live-in relationship to be treated as child born to married couple: Kerala High Court

In a decision of seminal significance, the Kerala High Court has held that a child born out a live-in relationship and acknowledged so by the mother of the child, would have to be treated as a child born to a married couple for the purposes of surrendering a child for adoption under Juvenile Justice (Care and Protection of Children) Act, 2015 [JJ Act)..A woman in a live-in-relationship, acknowledging 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 Act and Adoption Regulations of 2017, a Bench of Justices A Muhamed Mustaque and Dr. Kauser Edappagath said. .Only if a mother does not acknowledge any sort of relationship with the biological father, such mother has to be treated as an unmarried mother for the purpose of Juvenile Justice Act, the Court clarified. 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, it added. ."Under Regulation 7(5) of the Adoption Regulations, if a child born to a married couple is surrendered, both parents have to sign a deed of surrender. If surrender is by one parent and the whereabouts of the other parent are not known, the child shall be treated as an abandoned child [Regulation 7(6)]...... In this case, no such procedure was to be followed. 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," the Court ruled..The Court was hearing with a petition filed by a husband-wife duo, who were in a live-in relationship, seeking to reclaim their child who had been surrendered for adoption by the mother alone at a time when the couple had drifted apart. .Pertinently, the Bench opined that the procedure employed by the Child Welfare Committee (Committee) in the present case 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.."It is not the duty of the Committee to inquire about the legal status of the marriage as they are not the competent authority to decide on such status. Once it is found that the child is born to a couple, for all practical purposes of JJ Act, the inquiry must be initiated as though the child belonged to a married couple," the Court said. .A woman gave up her child to the Committee when her live -in partner moved to another State and called off the relationship for a while. The woman even executed a Deed of Surrender in June to give up her child in adoption. .Treating the woman 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 JJ Act. .However, the couple later approached the High Court by way of a Habeas Corpus plea, seeking the return of their child after they were denied the same by the Committee. .The Government Pleader submitted that the child had already been given in adoption.The Court opined that a writ of Habeas Corpus would not lie since proceedings concluded under the Act "had legal colour". .The Court, therefore, converted the plea to a revision petition. .What the Court held.After going through the rival submissions, the Court noted that there were two situations for surrender, one whereby a married couple could surrender their child for adoption and the second by which an unwed woman can give up her child for adoption. The issue before the Court was to identify whether a couple in a live-in relationship could be equated to a married couple for the purpose of surrender. ."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," the Court said. .The Court also adverted to the objective of the JJ Act which it said is restoration and protection of the child in need of care and protection. The first right of restoration was with biological parents, then adoptive parents, foster parents, guardians and finally, fit persons..Though marriage as a social institution depends upon personal law or secular law like Special Marriage Act, the same has no bearing on the concept of Juvenile Justice, the Court opined. "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 went on to hold 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.".Moving on to the factual matrix of the case at hand, the Court noted that names of both petitioners 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, 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 judgment said. The Court also held that the entire process followed in giving the child up for adoption was vitiated, since only the mother had signed the surrender deed. Therefore, the Court held that newly adoptive parents accrued no right since the process itself was illegal. With these observations, the Court set aside the adoption and ordered that the child be restored to the couple.