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Written by: Sagar Rana (Intern)
Edited by: Anubhav Yadav (Content Head & Developer)

On 10 th April 2021, the Kerala High Court held in its ruling that a child born out of a live-in relationship is ought to be treated as a child born out of a married couple for the purpose of the Adoption Guidelines and the Juvenile Justice Act.

For the purpose of “surrendering a child for adoption” under the Juvenile Justice Act, the Child Welfare Committee shall treat a child born to a couple in a live-in relationship as if it was born to a married couple, noted by the bench of Dr Kauser Edappagath and Justice A Muhamed Mustaque.

As for the facts of the case, the mother, Anitha (changed named to protect identity), gave up her child for adoption to the Child Welfare Committee, which was an action under anxiety as her partner John (changed named to protect identity) moved away from her breaking the relationship for a while. Their families objected their relationship as they both belonged to different religious faiths. Therefore, treating Anitha as a single mother, the Child Welfare Committee, proceeded to give the child in adoption to a couple under Section 38 of the Juvenile Justice (Care and Protection) Act, 2015 and provisions of the Adoption Regulations, 2017.

Subsequently, Anitha and John approached the Kerala High Court under a habeas corpus petition, demanding that their child be returned to them. The main issue before the court was whether a couple in a live-in relationship could be compared to a married couple for the purpose of surrender.

The court while noting that the parental right of biological parents is a natural right not preconditioned by the institutionalisation of legal marriage, held that the couples in a live-in relationship also have a right to restoration. “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… 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.”

The court further also observed that, the names of both Anitha and John as parents on the birth certificate of the child, shows the intention of the couple to acknowledge their relationship. Thus, the Child Welfare Committee shouldn’t have investigated about the legal status of the marriage, as it is 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.”

Therefore, the court ruled that the whole process followed in giving the child up for adoption was not valid since the surrender deed was signed by Anitha only. The court lastly held that the newly adoptive parents has no right since the process itself was illegal, and set aside the adoption and ordered that the child be restored to the couple.

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