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Supreme Court Stays Kerala High Court Judgment That Allowed Live-In Couple To Reclaim Their Surrendered Biological Child

Lydia Suzanne Thomas
3 May 2021 8:57 AM GMT
Supreme Court Stays Kerala High Court Judgment That Allowed Live-In Couple To Reclaim Their Surrendered Biological Child
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The Supreme Court today stayed the operation of a Kerala High Court judgment that restored the custody of a surrendered child to his biological parents, a couple in a live-in relationship.

Justices Vineet Saran and Dinesh Maheshwari stayed the landmark ruling following an appeal preferred by a couple to whom the child had been surrendered.

The couple in their plea asserts that the custody of the child was given over to the biological parents without duly giving them notice. They aver that despite having complied with all the procedures attendant to adopting a child, the Child Welfare Committee was taking steps to restore the rights of the biological child in favour of the biological parents.

Arguing that the judgment unsettles the finality of a legal adoption process in this manner contrary to the scheme and provisions of the Juvenile Justice Act, it is contended that this would direly affect the credibility of the entire institutional mechanism of adoption. It is also stated that as per the Adoption Regulations, 2017 under the Act provided that 'in case of a child born out of wedlock, only the mother can surrender the child'. Therefore, the Child Welfare Committee cannot be faulted for following the procedure as prescribed by the statute, it is averred.

Apart from this, the Special Leave Petition filed through Advocate Liz Mathew assails the judgment for the following reasons -

  • The judgement was passed behind their back
  • The High Court wholly erred in holding that there was no need to issue notice to the adoptive parents as the whole adoption process itself was illegal.
  • Adoption creates a permanent parent-child relationship with adoptive parents and the biological parents cannot reclaim the child. The word 'permanent' denotes the irrevocability of the separation process.
  • After the biological mother has duly executed a deed of surrender and after being given due counselling and time for reconsideration of two months, the Child Welfare Committee had validly declared the baby as available for adoption.
  • The High Court has ignored the valid legal proceedings culminating in the Family Court order where the petitioners were appointed as adoptive parents and legal guardians of the baby. 'The aforesaid order created legal and vested rights in favour of the Petitioners', the Plea states additionally.
  • The Petitioners ought to have been heard by the High Court before passing the impugned judgment.
  • The welfare and well-being of baby was not considered.

The petition emphatically stated that the mere nominal presence in the birth certificate cannot belatedly clothe the biological father with any rights that effaced the legal process of adoption after which the petitioners were appointed as adoptive parents.

The facts

In its judgment, the High Court narrated that the woman, Anitha(name changed by court to protect identity), gave her child up to a Child Welfare Committee (Committee), moved by anxiety when her partner John moved to another State and broke the relationship for a while. The couple's relationship was opposed by their families since they belonged to different faiths. During this interval, between making attempts to contact her partner, Anitha handed over her child to the Committee in May last year, executing a Deed of Surrender in June. The Court's judgment noted that Anitha's deed of surrender in no uncertain terms permitted the Committee to give the child in adoption in February 2021. Treating Anitha as an unwed mother, the Committee proceeded to give the child in adoption to a couple under provisions of the Adoption Regulations, 2017 and Section 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (the Act). After these developments, Anitha and John(name changed by court to protect identity) approached the High Court and moved a writ of habeas corpus, seeking the return of their child.

Finding that a live-in couple had the right of restoration, the Bench ruled that the parental right of biological parents is a natural right not preconditioned by institutionalization of legal marriage.

Therefore the Court concluded that there is no difficulty in holding that a child born in a live-in relationship also has to be construed as a child born to a married couple, and proceeded to hold that the process for surrender applicable to a married couple ought to have been applied in this case.

Click here to download the order



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