The Kerala High Court in the matter of XXXXXXXXXX v. State of Kerala[1] held that a child born in a live-in relationship has to be construed as a child born to a married couple in the context of juvenile justice.
Factual Background:
John and Anitha (*names changed) are an inter faith couple. Anitha had given birth to a baby girl at a Government Hospital and the birth certificate indicates the names of the father and mother of the child. John apparently became elusive for some time and Anita’s attempts to contact him went in vain.
Subsequently, Anitha approached the Child Welfare Committee and handed over the child to the Committee. She later executed a Deed of Surrender. The Committee, noting that Anitha is an unmarried mother, followed the procedure for surrender of the child by an unwed mother as 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 S. 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015 ("JJ Act"). The child was given in adoption to a couple by the order of the Family Court.
The petitioners claiming themselves as a live-in relationship couple approached this Court with a writ of habeas. Since the child had already been given in adoption, the Court was of the opinion that a writ of habeas as such would not lie. However, the Court, noting section 102 of the JJ Act, suo motu converted it to a Revision Petition as contemplated in the aforesaid provision.
Court Analysis and Decision:
Regulation 7 of the Adoption Regulations lays down the procedure to be employed in case of a surrendered child. The sub-clauses set out varying procedures for surrender by unmarried mother, a married couple, child born to a married couple by one biological parent when the whereabouts of the other parent are unknown, and by person other than biological parents.
The Court noted that an unwed mother in this context has to be understood as a mother who had begotten a child as a result of sexual assault or a casual relationship, and in such circumstances, the mother could surrender the child by executing a deed. Whereas in the matter of married couple, the procedure ensures that both the parents execute deeds of surrender. Therefore, the question before the Court in the instant case was whether a couple in a live in relationship is not a married couple, in the context of the concept of juvenile justice under law?
While referring to the judgment of the Supreme Court in D. Velusamy v. D. Patchaiammal[2], the Court observed that if the woman in a live-in-relationship, acknowledges the biological father of the child, out of such a relationship, the woman will have to be treated as a married woman for the purpose of juvenile justice.
The Court further noted that 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. On the basis of the same, the Court held that it is for the woman to recognize and decide on recognition of fatherhood of child. If she chooses to acknowledge the biological father at the time of conceiving, the father has every right to be recognized as a biological father. If such acknowledgment is absent, then she continues to be recognized as an unwed mother for the purpose of JJ Act.
After highlighting the scheme in this manner, the Court stated that a child born in a live-in relationship has to be construed as a child born to a married couple. 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.
While allowing the revision and directing the Committee to consider the biological father’s rights to claim for restoration under Sections 37 and 40 of JJ Act, the Court also highlighted that it was time for the Government to evolve a scheme to support single mothers.
[1] (2010) 10 SCC 469
[2] AIR 2021Ker115