The death is not the greatest loss in life. The greatest loss is what one dies inside us while we live – Norman Cousins

Facts: The couple in this revision, John (Christian by faith) and Anitha (Hindu by faith) (names changed to protect their privacy) met in the tragic floods at Kerala in 2008. They started to live together at Ernakulam, waiting to have their parents convinced so that they could be legally wedded. Meanwhile, however, Anitha becomes pregnant in May 2019, and gives birth to baby girl in February 2020 in the Government Hospital, Aluva. The birth certificate indicates the names of the mother and father.

John appears to have broken the relationship with Anitha for a while or became elusive, as Anitha made attempts to contact him in vain. Desperate, and isolated, Anitha contacts the Child Welfare Committee and hands over the child on 8^th May 2020, and executes a Deed of Surrender on 8^th June, 2020. Thereafter, she constantly keeps in touch with the Committee to track the child’s wellbeing.

The Deed of Surrender allows for the child to be given for adoption, accordingly the Committee followed the due process for surrender of the child by an unwed mother as per Adoption Regulations, 2017, and declared the child free for adoption as per Section 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as “JJ Act”). Accordingly, child was given for adoption to a couple on 2^nd February, 2021. 

The Petitioners claiming to be live in relationship couple approaches court with writ of habeas, which the court was of the opinion would not lie as the process was conducted legally as per JJ Act. However, it converted the petition into a suo moto revision petition u/S 102 of JJ Act.

Issue: Does the JJ Act differentiate unwed couple and legally wed couple to recognize biological parents?

Law: Section 38 of JJ Act provides different procedure for orphan and abandoned child and separate procedure for surrendered child.

Section 2(1) of JJ Act defines abandoned child as “a child deserted by his biological or adoptive parents or guardians, who has been declared as abandoned by the Committee after due inquiry;”

Section 2(60) of JJ Act defines surrendered child as “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;”

Section 35(1) provides for surrender by a single parent and Section 35(3) provides for surrender by both parents.

Regulation 7 of the Adoption Regulations provides a separate procedure for surrender by unmarried mother and by a married couple.

The court observed that if the procedure of surrender done in case of Anitha is valid, then the matter ends there. However, it is important to know if we can hold that a couple in a live-in relationship is not a married couple for the purpose of law related to surrender?

Analysis: As per Section 37 and 40 of JJ Act, the scheme of the Act is restoration and protection of the child. Such restoration is first with parents, then adoptive parents, foster parents, guardian or fit person. The court analyses the decision of the Hon’ble Supreme Court in D.Velusamy vs D.Patchaiammal [(2010) 10 SCC 469], which lays 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:

• 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 of time.

In the context of JJ Act, the court observed that if the mother does not want to recognise the parent due to the woman becoming mother in rape, sexual assault or by accident, such mother has to be treated as single mother.

However, a woman in live-in relationship acknowledging the biological father will have to be treated as married woman for the purpose of JJ Act. The purpose of JJ Act is to restore child with biological parents and in such case, legal marriage has no relevance.

The court further refers to various case laws including Suchita Srivastava & Anr v. Chandigarh Administration [(2009) 9 SCC 1], which states that woman’s right to make reproductive choices is a dimension of personal liberty, and refers to Revanasiddappa and Another v. Mallikarjun and Other [(2011) 11 SCC 1] wherein the Hon’ble Supreme Court held that norms of legitimacy changes with changing norms.

Judgement: Therefore, the court holds that 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.

In the instant case, the court observed that the procedure to be followed for unwed mother was followed during the process of surrender. 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. As the proceedings leading to Section 38 was not followed, the adoption becomes illegal. Accordingly, the Committee was directed to initiate the procedure of restoration as per Section 37 and 40 of JJ Act.

Observation: The Court further added that “ in a country where the people worship Goddess, in the land where people have been taught about woman: Gods abide where women are worshiped and all actions go futile where they are dishonoured. 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 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.”

– Prerana Saraf, Advocate & Associate