Kerala High Court: Child born in a live-in relationship to be treated as a child born to a married couple

The scheme of the enactment of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act) is to protect the welfare of the child. The parental right of biological parents is a natural right that is not preconditioned by the institutionalisation of legal marriage. In a live-in relationship, a couple acknowledges mutual rights and obligations. In a significant judgment by the Kerala High Court, it established that a child born in a live-in relationship has to be construed as a child born to a married couple.

Brief background to the facts and procedural history of the case:

The couple in question were unmarried but were cohabitating since 2018. They had a baby together in 2020. The woman was however isolated by her partner, due to which she approached the Child Welfare Committee of Ernakulam (the Committee), and handed over their child to the Committee months after her birth. She executed a Deed of Surrender and was constantly in touch with the Committee to keep a track of the wellbeing of the child.

The Deed of surrender executed by the mother permitted the Committee to give the child in adoption. The Committee had followed the procedure that delineated for the 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 was legally free for adoption in the manner contemplated under Section 38 of the JJ Act. The child thereafter was given in adoption to a couple by the order of the Family Court of Ernakulam in 2021.

The couple claimed that they were in a live-in relationship and sought the return of their child. They approached the High Court with a writ of habeas. Therefore, the central question before the court was whether the law differentiates between an unwed couple and a legally wed couple to recognise them, biological parents, in the context of the JJ Act.

Procedure for declaring a child legally free for adoption:

Section 38 of the JJ Act sets out different procedures for the adoption of orphaned and abandoned children and a distinct procedure for a surrendered child. The distinction in the Section for the procedure of declaration has been made for abandoned children and surrendered children keeping in mind the paramount parental rights of the biological parents.

1. Abandonment of child: Parental right is a natural as well as a universally recognised legal right, but so is the right of a child to preserve their identity with biological parents. Abandonment must be understood as an involuntary relinquishment or termination of parental rights. This enables the State to protect the welfare of the child through the procedure laid down under the law.

Sections 31, 36 and 38 of the JJ Act prescribes a procedure for the Committee in the matter of abandoned children making it mandatory for them to make all efforts for tracing the parents or guardians of the child. Once the Committee has established that a 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 up to 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.

2. Surrendering a child: For the surrender of a child, a distinct provision has been made as referable under Section 35 of the JJ Act. Section 35(1) speaks about surrender by a single parent. Section 35(3) speaks about surrender by both the parents. The surrender of a child, therefore, has to be understood as voluntary relinquishment or termination of parental rights by biological parents or guardians. The dichotomy of single parents and parents demands elaboration in the context of Section 35. 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.

The surrender of a child by an unwed mother is considered as the surrender of the child before the Committee as envisaged under Section 35 of the JJ Act, and her right to privacy has to be protected.
Similarly, surrender of a child by the biological parents is done before the Committee on the ground of emotional and social factors as envisaged under subsection (1) of Section 35 of the JJ Act.

Declaration under Section 38 of the JJ Act, declaring that the child is free for adoption, is intrinsically related to the obligation that was 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 the 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 a declaration under Section 38 of an abandoned child and surrendered child.

Procedure to surrender a child for adoption:

The procedure under the Regulations of the Adoption Regulations clearly distinguishes surrender by unmarried mothers from a married couple.

• A parent or guardian wishing to surrender a child under subsection (1) of section 35 of the Act, has to apply to the Child Welfare Committee in Form 23 of Juvenile Justice (Care and Protection of Children) Model Rules, 2016.
• If the surrendering parent is an unmarried mother, the Deed of Surrender must be executed in the presence of preferably any single female member of the Committee.
• If a child born to a married couple is to be surrendered, both parents have to sign a Deed of Surrender and in case one of them is dead, the death certificate is required to be furnished in respect of the deceased parent.
• 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 is treated as an abandoned child and further procedures under Regulation 6 of the Adoption Regulations must be followed.
• If the surrender is by a person other than the biological parents who are not appointed as a guardian by a court of law, the child is treated as an abandoned child and further procedures underRegulation 6 of the Adoption Regulations must be followed.
  
  

To discourage surrender by biological parents, efforts are made by the Specialised Adoption Agency or the Child Welfare Committee for exploring the possibility of parents retaining the child, which includes counselling or linking them to the counselling centre 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.

Can a couple in a live-in relationship be treated similarly to a married couple for law related to surrender?

In the matter of a married couple, the procedure or surrender ensures that both the parents execute the deed of surrender. If the child is born to a married couple and is surrendered by one of the biological parents, and the whereabouts of the other parent is not known, the child is 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 Supreme Court in the case of D.Velusamy v. D. Patchaiammal laid down certain parameters for live-in relationships in the context of the Protection of Women from Domestic Violence Act, 2005. The Court considered it similar to the marriage provided it fulfils the requirements referred as follows:

• The couple must hold themselves out to society as being akin to spouses.
• They must be of legal age to marry.
• They must be otherwise qualified to enter into a legal marriage, including being unmarried.
• They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period.
  
  

Kerala High Court’s Decision:

Taking into consideration all the relevant Rules and Laws in place, the Kerala High Court held that it is for a woman to recognize and decide on the recognition of fatherhood. 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. A woman alone has the right of choice on her body and motherhood. It is the time when she exercises the option on the conception that reckons - a child is born to a married couple or unmarried couple.

If at the time of conception, a woman has not recognized the right of fatherhood, in the context of the 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 JJ Act.

Finally, in the light of the scheme of law, it was clear that a child born in a live-in relationship also has to be construed as a child born to a married couple.