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.
