Whether Child Born In Live-in Relationship is To Be treated As Child Born To Married Couple for the adoption of a child under Juvenile Justice Act?

Now, we turn to the facts of the case. The

child was born in a Government Hospital, Aluva.

Father’s name is disclosed to the hospital authority

and also to the local authority. Name of the child was

also given in the birth certificate. Birth certificate

shows the name of the father, mother and child.

Surname of the child reflects the name of the father.

Birth certificate is a crucial document for public

authority to verify that the child is born to a married

couple or not. It is not the duty of the Committee to

inquire about the legal status of the marriage as they

are 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. {Para 28 }

29. Under Regulation 7(5) of the Adoption

Regulations, if a child born to a married couple is

surrendered, both parents have to sign a deed of

surrender. If surrender is by one parent and the

whereabouts of the other parent are not known, the

child shall be treated as an abandoned child

[Regulation 7(6)]. In the matter of abandoned child,

Regulation 6 will have to be followed. In this case,

no such procedure was adopted. Admittedly, the

procedure applicable to an unwed mother alone was

followed. 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. Due

enquiry procedure postulates an institutional decision

of the Committee treating the child as abandoned or

surrendered. The enquiry in this case must have been

an enquiry as contemplated for an abandoned child as

only one parent alone had executed the surrender deed.

30. Once the declaration under Section 38 is found

invalid, all consequential proceedings would also fall.

We paused for a moment to issue notice to the adopted

parents. We refrained from issuing notice as they

shall not come into contact with the biological

parents. That would be against the law laid down by

the Apex Court in Lakshmi Kant Pandey v. Union Of India

[AIR 1984 SC 469]. Further, we find no notice is

required to be sent to the adoptive parents as they

have no accrued or vested right prior to the

declaration under Section 38. If the entire

proceedings leading to Section 38 fall, consequently,

the adoption becomes illegal.

KERALA HIGH COURT

A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.

 

Dated this the 9th day of April, 2021

 

A.Muhamed Mustaque, J.

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