CHILD BORN IN LIVE-IN

Introduction

After the Landmark Judgment by Chief Justice K.G. Balakrishan and Justice Deepak Verma and B.S. Chauhan in the case of S. Khushboo Vs. Kanniammal [1] which was a significant contribution in the jurisprudence of freedom of speech. It was held by the court that living relation falls within the ambit of Article 21[2], as within the ambit of Right to life, which considered that two adults living together can’t be considered as illegal or unlawful, but the lacuna lies, what if a child is born in a live in relationship and in that circumstance would these parents be considered as married couples or legal parents if yes, however in situation where the parent due to unconditional circumstances can’t take care of such child and surrendered such a child for adoption, In such circumstance does the adopting parent be considered as only parent or does the couples in the live-in relationship have the right of restoration of their child[3] with the execution deed for surrendering[4]. This Blog seeks to look at the aftereffect of live-in relationship when a child is born but due to family constrain and social norm the child is seen with evil eyes, so this recent judgment has set a precedent post the judgment of S. Khushboo Vs. Kanniammal in relationship which would harmonies the society and reduce the rate of abortion and increase the rate of adoption.

Analysis 

In the hearing at High court Bench of Justice A. Muhamed Mustaque and Dr. Kauser Edappagth targeted this lacuna and the Bench perhaps highlighted it and portrayed the essence of the finest interpretation of living relation within the ambit of article 21[5], the ambiguity in the matter needed to highlighted and the same is brought to light within the matter and held by Kerala High court that “the legally unsustainable as the child has to be treated as born to as married couple child born to a married couple for the purposes of surrendering a child for adoption”.

The court pointed out that if a women if gave her child to the child welfare committee with an execution deed for surrendering after twelve months, due to social anxiety due to parent restrictions and religious faith or because the couple relationship is opposed by the family, since after this long battle if the biological mother comes to the adoption center seeking her child in such condition before this judgment the unwed mother was bound not to restore the child as under the child adoption to the couple under the provision of the adoption regulation, 2017 and section 38 of Juvenile Justice (Care and Protection of Child) Act, 2015, Lakshmi Kant Pandey Vs Union of India[6].

However, after the development in their relationship the Biological parent approached the High Court and move a writ of habeas corpus, seeking the return of their child, because in the above case the child was already been given in adoption in this matter the court opined that a writ of habeas would not lie since in this matter the procedure lied under the act “had legal colors”. So after which the court matter as took the Suo Moto cognizance[7] and converted the proceeding into a revision petition[8]. Posit to which it was taken up by the Divisional Bench of Justices Mustaque and Dr. Edappagath,

The court pointed at the relevant procedure in the matter of the married couple and the procedure provided that parents execute deed of surrender must be signed but both the parent if living and, if the child born to a married couple and surrendered by one of the parents in such scenario if one parent is not known then this child should be treated as an abandoned child and procedure under of adoption regulation has to be followed and enquiry for the trace out of the biological parent or the legal guardian should be applied[9], but in this scenario, the biological father was living at the time of this deed and still this procedure was not exhausted despite the child proceeded for adoption.

Holding on to the relevance of the restoration of the child was firstly with the parent, then the adoptive parents, foster parents, guardian and then finally to the fit person[10]. However, the court ruled that parent right of the biological parents is natural right not prepositional by institutionalization of the legal marriage.

In respect with the court’s finding the court finally adhered as the procedure applicable to an unwed mother alone was followed, which is legally unsustainable because the child born shall be treated as born to a married couple and stated that that the whole procedure of giving the child up for adoption is vitiated, as the only mother signed the surrender deed.

In the prelude situation where the adoptive parents accrued no right since the process par say was unlawful, however post the judgment the precedent is set forth by this case and the High court set aside the adoption and ordered that the child be restored to the couple, who are the biological parents of the child under the section 37 and 40 of the Juvenile Justice (Care and Protection of Children) Act, 2015.

Conclusion

This precedent was the need of the hour as the judicial activism in the matter through suo moto cognizance comprehended the rights of the parent which would benefit all the parent waiting for restoration of their child, this matter is in consonance with the judgment of the S. Khushboo Vs. Kanniammal and the lacuna is pointed out by the court and the matter is a success for all those unmarried couples who realized the essence of the child and this would also help in the lowering the abortion rate in India and which would in the end up pump in the harmonious faith in the adoption centers and pump in more adoption all across the nation, as a result, several children could see the light of the day.

~Authored by Jatin Kumar