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”, Justice Mustaque and Edappagath hold in their judgment.
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 n 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 married couple”, the Bench ultimately underscored. Thus, any deed of surrender would have had to be signed by both parents, it was stated. Where bothparents 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. 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 restores to the couple.