Tuesday, 20 April 2021

Whether Child Born In Live-in Relationship is To Be treated As Child Born To Married Couple for the adoption of a child under Juvenile Justice Act?

 Now, we turn to the facts of the case. The

child was born in a Government Hospital, Aluva.

Father’s name is disclosed to the hospital authority

and also to the local authority. Name of the child was

also given in the birth certificate. Birth certificate

shows the name of the father, mother and child.

Surname of the child reflects the name of the father.

Birth certificate is a crucial document for public

authority to verify that the child is born to a married

couple or not. 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, inquiry

must be initiated as though the child belonged to a

married couple. {Para 28 }

29. 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 the matter of abandoned child,

Regulation 6 will have to be followed. 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. The

declaration and issuance of certificate under Section

38 of JJ Act that the child is legally free for

adoption is possible only after conducting due enquiry

as contemplated under the Adoption Regulations. Due

enquiry procedure postulates an institutional decision

of the Committee treating the child as abandoned or

surrendered. The enquiry in this case must have been

an enquiry as contemplated for an abandoned child as

only one parent alone had executed the surrender deed.

30. Once the declaration under Section 38 is found

invalid, all consequential proceedings would also fall.

We paused for a moment to issue notice to the adopted

parents. We refrained from issuing notice as they

shall not come into contact with the biological

parents. That would be against the law laid down by

the Apex Court in Lakshmi Kant Pandey v. Union Of India

[AIR 1984 SC 469]. Further, we find no notice is

required to be sent to the adoptive parents as they

have no accrued or vested right prior to the

declaration under Section 38. If the entire

proceedings leading to Section 38 fall, consequently,

the adoption becomes illegal.

KERALA HIGH COURT

 A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.


Dated this the 9th day of April, 2021


A.Muhamed Mustaque, J.

The death is not the greatest loss in life. The

greatest loss is what one dies inside us while we

live(1). This case unbundle the trauma of a couple in a

live-in relationship, isolation of a single mother,

love of mother for her child, rights of biological

father, entangled in legal vortex.

2. The couple in this revision, John and Anitha

(names changed to protect their privacy) met during the

tragic floods in the year 2018 happened in Kerala. They

are active in NGOs. John is a Christian and Anitha is

Hindu by their faith. Anitha is from Thrissur. Soon

the couple realised that their intimacy knew no bounds

to chart a new path in their life. They start to live

together at Ernakulam, 65 kms away from the parental

house of Anitha. Opposition came from their own kith

and kin. They waited to officially marry once their

parents are convinced. But the biological instincts of

1 Norman Cousins Author of Anotomy of illness

the couple could not be arrested. Anitha became

pregnant in the month of May 2019. She gave birth to a

baby girl on 3/2/2020 in the Government Hospital,

Aluva. The birth certificate indicates names of father

and mother of the child. The entire case perhaps

revolves around the importance of the birth

certificate, to decide the outcome of this case.

3. John is an artist. He seems to have travelled

to Karnataka to act in a Malayalam Film. He appears

to have broke the relationship with Anitha for a while

or remained elusive (as narrated in the revision

memorandum). Anxious Anitha made attempts to contact

John; but in vain. Isolated, desperate and repressed

Anitha had no option but to approach the Child Welfare

Committee, Ernakulam, and handed over the child to the

Committee on 8/5/2020. She executed a Deed of

Surrender on 8/6/2020. Thereafter, she constantly kept

in touch with the Committee and the Child Care

Institution where the child was put up, to keep a track

of the wellbeing of the child. Chat messages of Anitha

with the Social Worker depicts how vulnerable it is for

a woman becoming mother not in a legally wedded

relation. Desperation and plight of the motherhood

reflected through the chat messages that depicts the

care for the baby from the womb of the person, Anitha.

4. The Committee set the law into motion. Deed

of surrender executed by Anitha in no uncertain terms

permits the Committee to give the child in adoption.

The Committee, noting that Anitha is an unmarried

mother, followed the procedure that delineated for

surrender of the child by an unwed mother as referable

under the Adoption Regulations, 2017. On completion of

the procedure, the Committee declared that the child is

legally free for adoption in the manner contemplated

under Section 38 of the Juvenile Justice (Care and

Protection of Children) Act, 2015 (hereinafter referred

to as “JJ Act”). This declaration was on 17/8/2020.

The child thereafter was given in adoption to a couple

by the order of the Family Court, Ernakulam, on

2/2/2021.

5. The petitioners claiming themselves as live-in

relationship couple approached this Court with a writ

of habeas on 10/2/2021. Notice was issued to the State

and the Child Welfare Committee. The learned

Government Pleader and counsel appearing for the

Committee submitted before the Court that the child had

already been given in adoption. Based on this

submission, on 11/2/2021, the Court was of the firm

opinion that a writ of habeas as such would not lie as

the proceedings concluded under the JJ Act have legal

colour. However, the Court, noting Section 102 of the

JJ Act, suo motu converted it to a revision petition as

contemplated in the aforesaid provision.

6. Legality and propriety of the declaration

under Section 38 of JJ Act therefore, has to be tested

invoking the revisional power of this Court in this

matter. If this Court finds the entire proceedings

leading to the declaration under Section 38, is held as

bad, necessarily, all consequential proceedings would

fall into ground.

7. The central issue in this context perhaps is

more related to a perplexing mind; accepting and

recognising live-in relationships. Did the law

differentiate between unwed and legally wed couple in

matters or relationships not connected with marriage,

as a social institution? In other words, to put it in

the context of juvenile justice does the law

differentiate unwed couple and legally wed couple to

recognize biological parents. The issues involved in

this matter cannot be resolved without answering these

pointed questions.

8. We shall answer these questions when we advert

to the procedure required to be followed regarding the

declaration that the child is legally free for

adoption.

9. Section 38 of JJ Act set out different

procedures for the declaration as above. Separate

procedure has been referred for orphan and abandoned

child and a distinct procedure for a surrendered child.

Which of the procedures have to be followed is the

question involved in this case. It is appropriate to

refer Section 38, which reads thus:

38. Procedure for declaring a child legally free for adoption: (1) In

case of orphan and abandoned child, the Committee shall make all

efforts for tracing the parents or guardians of the child and on

completion of such inquiry, if it is established that the child is

either an orphan having no one to take care, or abandoned, the

Committee shall declare the child legally free for adoption:

Provided that such declaration shall be made within a period of two

months from the date of production of the child, for children who are

up to two years of age and within four months for children above two

years of age:

Provided further that notwithstanding anything contained in this regard

in any other law for the time being in force, no first information

report shall be registered against any biological parent in the process

of inquiry relating to an abandoned or surrendered child under this

Act.

(2) In case of surrendered child, the institution where the child has

been placed by the Committee on an application for surrender, shall

bring the case before the Committee immediately on completion of the

period specified in section 35, for declaring the child legally free

for adoption.

(3) Notwithstanding anything contained in any other law for the time

being in force, a child of a mentally retarded parents or a unwanted

child of victim of sexual assault, such child may be declared free for

adoption by the Committee, by following the procedure under this Act.

(4) The decision to declare an orphan, abandoned or surrendered child

as legally free for adoption shall be taken by at least three members

of the Committee.

(5) The Committee shall inform the State Agency and the Authority

regarding the number of children declared as legally free for adoption

and number of cases pending for decision in the manner as may be

prescribed, every month.

10. The distinction in Section 38 for the

procedure of declaration has been made for abandoned

child and surrendered child keeping in mind the

paramount parental rights of the biological parents.

Therefore, it is necessary to distinguish abandoned

child and surrendered child with reference to the

procedure as well.

11. We shall now refer to the meaning of

abandoned child and its procedure for declaration under

Section 38. Section 2(1) defines abandoned child as

follows:

(1) “abandoned child” means a child deserted by his biological or adoptive parents or

guardians, who has been declared as abandoned by the Committee after due inquiry;

12. Abandonment refers to voluntary relinquishment

of a known right. Parental right is a natural as well

as universally recognised legal right. Child also has

a fundamental right to preserve his identity with

biological parents. It is a necessary concomitant with

right to life as protected under Article 21 of the

Constitution of India. Article 8 of the United Nations

Convention on the Rights of the Child, clearly spell

out the right of identity of the child with the family.

Unlawful interference of such rights would deny the

right to life guaranteed under Article 21 of the

Constitution. Abandonment, therefore, has to be

understood as an involuntary relinquishment or

termination of parental right. This enables the State

to protect the welfare of the child through the

procedure laid down under law. In order to protect the

welfare of the child, JJ Act commands the constitution

of the Child Welfare Committee. Sections 31, 36 and 38

prescribe procedure for the Committee in the matter of

abandoned children. It is a mandatory procedure for

the Committee to make all efforts for tracing the

parents or guardians of the child in the light of

Section 38(1). As seen from the above provision, only

after it is established that the child is either an

orphan having no one to take care of or abandoned, the

committee is competent to declare that the child is

legally free for adoption. For children who are upto

two years of age, such a declaration has to be made

within two months from the date of production of the

child before the Committee.

13. For surrender of a child, a distinct

provision has been made as referable under Section 35

of the JJ Act. Section 2(60) defines surrendered

child as follows:

(60) “surrendered child” means a child, who is relinquished by the

parent or guardian to the Committee, on account of physical, emotional

and social factors beyond their control, and declared as such by the

Committee;

14. Section 35(1) speaks about surrender by a

single parent. Section 35(3) speaks about surrender by

both the parents. Surrender of child therefore, has to

be understood as voluntary relinquishment or

termination of parental rights by biological parents or

guardians. The dichotomy of single parent and parents

demands elaboration in the context of Section 35. Law

makers left it to the choice of rule makers to explain.

Declaration under Section 38, declaring that the child

is free for adoption, is intrinsically related to the

obligation that cast upon the Committee to restore the

child in need of care and protection as prescribed in a

manner under Sections 37 and 40 of JJ Act. One of the

modes of restoration prescribed in Section 40 is

restoration with adoptive parents. Section 68 of JJ Act

confers regulations making power on the Central

Adoption Resource Authority. Accordingly, Adoption

Regulations, 2017 were formulated. Therefore, the

procedure as mentioned in the Adoption Regulations also

assumes importance to differentiate the procedure for

declaration under Section 38 of an abandoned child and

surrendered child.

15. It is appropriate to refer Regulations

6(6) to 6(14) of the Adoption Regulations:

(6) For tracing out the biological parents or the legal guardian(s),

the Child Welfare Committee, after taking into account the risk

factors, and in the best interest of the child, may direct the District

Child Protection Unit to advertise the particulars and photograph of an

orphan or abandoned child in a national newspaper with wide circulation

within three working days from the time of receiving the child and also

ensure entry of data in the designated portal in its missing or found

column by the concerned Child Care Institution or Specialised Adoption

Agency.

(7) In case where the child is from another State, the publication

shall be done in the known place of origin of the child in the local

language and such publications shall be facilitated by State Adoption

Resource Agency concerned.

(8) Wherever District Child Protection Unit is not functional, the

District Magistrate concerned shall get such advertisement issued.

(9) In case the biological parents or legal guardian cannot be traced,

despite the efforts specified in sub-regulations (6) to (8), the

District Child Protection Unit shall accordingly, submit a report to

the Child Welfare Committee within thirty days from the date of

production of the child before the Child Welfare Committee.

(10) The Child Care Institution or Specialised Adoption Agency shall

submit a report to the Child Welfare Committee, immediately on

completion of thirty days from the date of production of the child,

before the Child Welfare Committee and the report shall include any

information revealed by the child during his short term placement and

details of person(s) whosoever approached for claiming the child, if

any.

(11) In case the report from the local police regarding the nontraceability

of the biological parents or legal guardian is not

submitted within two or four months in the case of an abandoned child

less than two or four years of age respectively, such report shall be

deemed to have been given.

(12) The Child Welfare Committee shall use the designated portal to

ascertain whether the abandoned child or orphan child is a missing

child.

(13) The Child Welfare Committee, after taking actions as per the

provisions of the Act, rules made thereunder and these regulations

shall issue an order signed by any three members of the Child Welfare

Committee declaring the abandoned or orphan child as legally free for

adoption in the format at Schedule I within a period of two or four

months, from the date of production of the child before the Child

Welfare Committee, in case of a child upto two or above two years of

age respectively.

(14) The inquiry under section 36 of the Act and the order declaring an

abandoned or orphan child as legally free for adoption by the Child

Welfare Committee under section 38 of the Act shall be completed in the

district where the child was initially found, or in the district to

which the child is shifted under orders of the Child Welfare Committee.

16. It is also appropriate to refer the relevant

procedure for ‘surrendered child’ in Regulation 7 of

Adoption of Regulations :

7. Procedure relating to a surrendered child.- (1) A parent or guardian

wishing to surrender a child under subsection (1) of section 35 of the

Act, shall apply to the Child Welfare Committee in the Form 23 of

Juvenile Justice (Care and Protection of Children) Model Rules, 2016.

(4) If the surrendering parent is an unmarried mother, the Deed of

Surrender may be executed in the presence of preferably any single

female member of the Child Welfare Committee.

(5) If a child born to a married couple is to be surrendered, both

parents shall sign the Deed of Surrender and in case one of them is

dead, death certificate is required to be furnished in respect of the

deceased parent.

(6) If a child born to a married couple is to be surrendered by one

biological parent and the whereabouts of the other parent are not

known, the child shall be treated as abandoned child and further

procedures in accordance with regulation 6 of these regulations shall

be followed.

(8) If the surrender is by a person other than the biological parents

who is not appointed as a guardian by a court of law, the child shall

be treated as abandoned child and further procedures in accordance with

regulation 6 shall be followed.

(11) To discourage surrender by biological parents, efforts shall be

made by the Specialised Adoption Agency or the Child Welfare Committee

for exploring the possibility of parents retaining the child, which

shall include counselling or linking them to the counselling center set

up at the Authority or State Adoption Resource Agency, encouraging them

to retain the child and explaining that the process of surrender is

irrevocable.

(15) In case the surrendering biological parent has not claimed back

the child during the reconsideration period, the same shall be

intimated by the Specialised Adoption Agency to the Child Welfare

Committee on completion of sixty days from the date of surrender.

(16) The reconsideration period for the biological parents is specified

in sub-section (3) of section 35 of the Act and no further notice shall

be issued to the surrendering parents.

(21) The surrender of a child by an unwed mother before a single woman

member of the Child Welfare Committee shall be considered as surrender

of the child before the Committee as envisaged under section 35 of the

Act, and her right to privacy has to be protected.

(23) The surrender of child or children by the biological parents for

adoption by the step-parent shall be before the Child Welfare

Committee, for adoption, on the ground of emotional and social factors

as envisaged under subsection (1) of section 35 of the Act, in the

format given at Schedule XXI.

17. The procedure under Regulation 7 clearly

distinguishes surrender by unmarried mother as from

married couple. The entire legal issue is surmounted

on the legality of the surrender by Anitha,

unilaterally. Therefore, if surrender is legally

valid, the entire challenge in this case comes to an

end. As seen from the perusal of records produced

before this Court by the Committee, they have followed

the procedure for surrendering the child applicable to

an unmarried mother.

18. There are two circumstances wherein

normally a child needs care and protection from the

State/Committee:

i. Orphan or abandoned child

ii. Surrendered child

‘Surrendered child’ needs further classification under

law:

i. surrendered by married couple

ii. Surrendered by an unmarried mother.

19. Law posit in this matter on the question of

definition of married couple under JJ Act. Can we hold

that a couple in a live-in relationship is not a

married couple for the purpose of law related to

surrender? This question has perplexed our mind.

Interpretation of law must be contextually relevant

based on the text of legislation. Married couple has

to be understood in contrast to an unwed mother. Unwed

mother has to be understood as a mother who begotten a

child as a result of sexual assault or in a casual

relationship. Law in such circumstances places

importance to the right of such mothers. In such

circumstances, an unmarried mother would be recognised

as a single parent and surrender by such mother is

legally considered as valid in the light of Section

35(1) of JJ Act and Regulations 7(4), 7(7), & 7(21).

20. 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 will have to be followed.

This procedure mandates an inquiry to trace out the

biological parents or the legal guardians.

21. The point therefore, to be considered is

whether a married couple includes a couple in a live-in

relationship or not. This has to be deliberated in the

context of the concept of juvenile justice under law.

22. The scheme of the enactment itself is to

protect the welfare of the child. As seen from

Sections 37 and 40 of JJ Act itself, the prime aim of

the law is restoration and protection of the child in a

sequential order as mentioned in the explanation. In

the first place, restoration is with parents. Then in

the order of adoptive parents, foster parents; guardian

or fit person. Attempting to trace out the biological

parents in the matter of abandonment is to restore the

child with the biological parents. 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. Parental right of

biological parents is a natural right not

preconditioned by institutionalization of legal

marriage. 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.

In D.Velusamy vs D.Patchaiammal [(2010) 10 SCC 469],

the Hon’ble Supreme Court laid down certain parameters

for live-in relationship in the context of the

Protection of Women from Domestic Violence Act, 2005.

The Apex Court considered it similar to the marriage

provided it fulfills the requirements referred as

follows:

(a) The couple must hold themselves out to society as being

akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal

marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves

out to the world as being akin to spouses for a significant

period of time.

(see `Common Law Marriage' in Wikipedia on Google) In our opinion a

`relationship in the nature of marriage' under the 2005 Act must also

fulfill the above requirements, and in addition the parties must have

lived together in a `shared household' as defined in Section 2(s) of

the Act. Merely spending weekends together or a one night stand would

not make it a `domestic relationship'.

23. 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.

The 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. If the

artificial difference of the couple distinguishing them

‘legally married’ and ‘not legally married’ has no

bearing in the ultimate object of law, the court must

adopt an approach of interpretation to serve the object

of law giving it a meaning to promote law and not to

denounce the same. The dominant object of law in making

the distinction between the married couple and

unmarried mother is in the context of the nature of

inquiry to be conducted for tracing the biological

parents to restore the child with biological parents or

guardian. The legal marriage has no relevance at all in

such circumstances. In matters of surrender by unwed

mother no such inquiry is contemplated as she does not

acknowledge any relationship with the biological

father. She may be a victim of sexual assault or

begotten a child accidentally. If statutory provision

is not assigned the meaning consistent with the object

of law, it may take away the right of the biological

father which statute never intended. Taking away of

right of biological father would arise only in extreme

circumstances where he has no right to claim the

fatherhood.

24. A woman’s womb is precious possession of her

personhood and no one can claim right over it; except

with her consent.

25. In Suchita Srivastava & Anr v. Chandigarh

Administration [(2009) 9 SCC 1], the Apex Court

recognized woman's right to make reproductive choices

as a dimension of ‘personal liberty’. In Revanasiddappa

and Another v. Mallikarjun and Other [(2011) 11 SCC 1]

apex court while considering the coparcenry rights of

illegitimate children in void marriage in the wake of

amendment to Section 16 (3) of Hindu Marriage Act in

the year 1976 observed in para 30 as follows:

With changing social norms of legitimacy in every society,

including ours, what was illegitimate in the past may be legitimate

today. The concept of legitimacy stems from social consensus, in the

shaping of which various social groups play a vital role. Very often a

dominant group loses its primacy over other groups in view of ever

changing socio-economic scenario and the consequential vicissitudes in

human relationship. Law takes its own time to articulate such social

changes through a process of amendment. That is why in a changing

society law cannot afford to remain static. If one looks at the history

of development of Hindu Law it will be clear that it was never static

and has changed from time to time to meet the challenges of the

changing social pattern in different time.

26. In K.S.Puttaswamy v. Union Of India And Ors.

[(2017) 4 KLT 1] at paras.72 and 169 held as follows:

72. The decision in Suchita Srivastava dwells on the statutory right

of a woman under the MTP Act to decide whether or not to consent to

a termination of pregnancy and to have that right respected where

she does not consent to termination. The statutory recognition of

the right is relatable to the constitutional right to make

reproductive choices which has been held to be an ingredient of

personal liberty under Article 21. The Court deduced the existence

of such a right from a woman's right to privacy, dignity and bodily

integrity.

169. Privacy of the individual is an essential aspect of dignity.

Dignity has both an intrinsic and instrumental value. As an

intrinsic value, human dignity is an entitlement or a

constitutionally protected interest in itself. In its instrumental

facet, dignity and freedom are inseparably inter-twined, each being

a facilitative tool to achieve the other. The ability of the

individual to protect a zone of privacy enables the realization of

the full value of life and liberty. Liberty has a broader meaning of

which privacy is a subset. All liberties may not be exercised in

privacy. Yet others can be fulfilled only within a private space.

Privacy enables the individual to retain the autonomy of the body

and mind. The autonomy of the individual is the ability to make

decisions on vital matters of concern to life. Privacy has not been

couched as an independent fundamental right. But that does not

detract from the constitutional protection afforded to it, once the

true nature of privacy and its relationship with those fundamental

rights which are expressly protected is understood. Privacy lies

across the spectrum of protected freedoms. The guarantee of equality

is a guarantee against arbitrary state action. It prevents the state

from discriminating between individuals. The destruction by the

state of a sanctified personal space whether of the body or of the

mind is violative of the guarantee against arbitrary state action.

Privacy of the body entitles an individual to the integrity of the

physical aspects of personhood. The intersection between one's

mental integrity and privacy entitles the individual to freedom of

thought, the freedom to believe in what is right, and the freedom of

self-determination. When these guarantees intersect with gender,

they create a private space which protects all those elements which

are crucial to gender identity. The family, marriage, procreation

and sexual orientation are all integral to the dignity of the

individual. Above all, the privacy of the individual recognises an

inviolable right to determine how freedom shall be exercised. An

individual may perceive that the best form of expression is to

remain silent. Silence postulates a realm of privacy. An artist

finds reflection of the soul in a creative endeavour. A writer

expresses the outcome of a process of thought. A musician

contemplates upon notes which musically lead to silence. The

silence, which lies within, reflects on the ability to choose how to

convey thoughts and ideas or interact with others. These are crucial

aspects of personhood. The freedoms under Article 19 can be

fulfilled where the individual is entitled to decide upon his or her

preferences. Read in conjunction with Article 21, liberty enables

the individual to have a choice of preferences on various facets of

life including what and how one will eat, the way one will dress,

the faith one will espouse and a myriad other matters on which

autonomy and self-determination require a choice to be made within

the privacy of the mind. The constitutional right to the freedom of

religion under Article 25 has implicit within it the ability to

choose a faith and the freedom to express or not express those

choices to the world. These are some illustrations of the manner in

which privacy facilitates freedom and is intrinsic to the exercise

of liberty. The Constitution does not contain a separate article

telling us that privacy has been declared to be a fundamental right.

Nor have we tagged the provisions of Part III with an alpha suffixed

right of privacy: this is not an act of judicial redrafting. Dignity

cannot exist without privacy. Both reside within the inalienable

values of life, liberty and freedom which the Constitution has

recognised. Privacy is the ultimate expression of the sanctity of

the individual. It is a constitutional value which straddles across

the spectrum of fundamental rights and protects for the individual a

zone of choice and self-determination.

27. It is for the woman to recognize and decide

on recognition of fatherhood of child. If she chooses

the preference to acknowledge the biological father

at the time of conceiving, the father has every right

to be recognized as a biological father. Woman alone

has the right of choice on her body and motherhood. It

is the time when she exercises the option on

conception that reckons - a child is born to a married

couple or unmarried couple. If at the time of

conception, she has not recognized the right of

fatherhood, in the context of JJ Act, a man has no

right to recognize himself as the biological father,

except with her consent and; she continues to be

recognized as an unwed mother for the purpose of JJ

Act. Decisional autonomy is the key in privacy

rights.Once a woman acknowledges the biological father

that cannot be questioned to deny the right of

biological father on the ground of want of legal

marriage. Any such denial would amounts to encroaching

up on her decisional autonomy and freedom to choose. JJ

Act intends to exclude only such biological father, who

became father without the consent of the woman. Thus in

the light of scheme of law as above 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.

28. Now, we turn to the facts of the case. The

child was born in a Government Hospital, Aluva.

Father’s name is disclosed to the hospital authority

and also to the local authority. Name of the child was

also given in the birth certificate. Birth certificate

shows the name of the father, mother and child.

Surname of the child reflects the name of the father.

Birth certificate is a crucial document for public

authority to verify that the child is born to a married

couple or not. 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, inquiry

must be initiated as though the child belonged to a

married couple.

29. 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 the matter of abandoned child,

Regulation 6 will have to be followed. 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. The

declaration and issuance of certificate under Section

38 of JJ Act that the child is legally free for

adoption is possible only after conducting due enquiry

as contemplated under the Adoption Regulations. Due

enquiry procedure postulates an institutional decision

of the Committee treating the child as abandoned or

surrendered. The enquiry in this case must have been

an enquiry as contemplated for an abandoned child as

only one parent alone had executed the surrender deed.

30. Once the declaration under Section 38 is found

invalid, all consequential proceedings would also fall.

We paused for a moment to issue notice to the adopted

parents. We refrained from issuing notice as they

shall not come into contact with the biological

parents. That would be against the law laid down by

the Apex Court in Lakshmi Kant Pandey v. Union Of India

[AIR 1984 SC 469]. Further, we find no notice is

required to be sent to the adoptive parents as they

have no accrued or vested right prior to the

declaration under Section 38. If the entire

proceedings leading to Section 38 fall, consequently,

the adoption becomes illegal.

31. Before we part with the judgment, we may

add, in a country where the people worship Goddess, in

the land where people have been taught about woman:

Yatra naryastu pujyante ramante tatra Devata,

yatraitaastu na pujyante sarvaastatrafalaahkriyaah".

(Manusmriti (3.56)). [Gods abide where women are

worshiped and all actions go futile where they are

dishonoured](Manusmriti 3:56). In the State where we

boast cent percent literacy, our attitude to woman is

despising; a single mother has no financial or social

support. She faces emotional challenges and forced to

believe she is destined to be isolated as result of

guilt. She gets hardly any support from the system. It

is time for the Government to evolve a scheme to

support the single mother. The anomie Anitha had to

face as a single mother is the hurdle created by the

society. Anitha never attempted to exterminate her

womb; she bore the pain to give birth; like every

mother she loved to care the child… but was not allowed

by circumstances in the society. She thought without

support of man, she cannot survive. If a woman feels

she is nothing without the support of the man that is

the failure of the system. She shall not succumb to the

temptation of giving up. The power of human in this

Universe is the power of motherhood. It is for the

State to make her realize that her struggle with the

forces undermining her existence can be validated with

the support of rule of law. That self belief must be

her identity and respect due to her.

32. Accordingly, we set aside the certificate

issued under Section 38 and allow this revision. In

view of the willingness of the biological father to

take care of the child, we direct the Committee to

consider his rights to claim for restoration under

Sections 37 and 40 of JJ Act. The Committee shall take

necessary steps for initiating the proceedings for

restoration in accordance with law within a period of

one month. Care and protection of the child with the

adoptive parents would depend upon the outcome of such

decision of Committee. No order as to costs.

N.B.

In order to protect the privacy of parties

involved, the parties name shall be masked while

uploading the judgment. Publishing the names of parties

is prohibited without their consent. We noticed in

certified copy issued by the Family Court name of

adoptive parents is disclosed. Confidentiality of

adoptive parents have to be maintained in public portal

and adoption records under Regulation 45 of the

Adoption Regulations. We direct the Registrar

(District Judiciary) to give necessary directions to

all the Family Courts in the State to mask the names of

adoptive parents while issuing the certified copies.

A.MUHAMED MUSTAQUE, JUDGE

DR.KAUSER EDAPPAGATH, JUDGE

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