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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