The Court observed that a woman in a live-in-relationship, acknowledging the biological father of the child, out of such a relationship, will have to be treated as a married woman for the consideration of Juvenile Justice Act.
A woman in a living relationship, who admits that the father of a child born, as a result of such a relationship, will have to be considered a married woman for the purposes of the Juvenile Justice Act and the Adoption Regulations of 2017, Bench of Justices. Kauser Edappagath Observed.
Only if the mother does not consent to any kind of relationship with the biological father, that mother should be treated as a single mother for the purposes of the Juvenile Justice Act, the Court has clarified.
A woman who becomes a mother in rape or sexual abuse, or accidentally, does not want to recognize or acknowledge the father; in such cases, such a mother should be treated as a single mother, in addition.
"Under Rule 7 (5) of the Adoption Regulations, if a child who has been surrendered to a spouse has been surrendered, both parents must sign a declaration of allegiance. "In this case, there is no procedure to be followed. Admittedly, the procedure for a single unmarried mother was followed. It is unbearable as the child should be treated as a single parent," the Court said.
The court heard a petition filed by the husband and wife, who were in a living relationship, demanding the return of their child who had been adopted by the mother alone when the couple split up.
In fact, the Bench suggested that the procedure used by the Child Welfare Committee (Committee) in the current case while offering the child for adoption was not legally protected. In its decision, Bench found that the process followed by single mothers is being followed.
"It is not the responsibility of the Committee to inquire about the legal status of the marriage as it is not the proper authority to decide such a situation. Once a child is found to be born of a couple, for all JJ's purposes.
The woman donated her child to the Committee when her surviving partner moved abroad and ended the relationship temporarily. The woman even made a Donation Title in June to donate her baby to the discovery.
Treating the woman as a single mother, the Committee went on to provide for the adoption of a child under the provisions of the Adoption Regulations, 2017 and Section 38 of the JJ Act.
However, the couple later went to the High Court in the form of Habeas Corpus' application, seeking the reinstatement of their child after a similar denial by the Committee.
The Government Pleader revealed that the child had already been placed in custody.
The Court has ruled that Habeas Corpus' letter will not lie as the process completed under this Act is "legal in color".
The Court, therefore, converted the application into an appeal.
That which the Court held
After filing controversial submissions, the Court noted that there are two types of surrender, one in which a married couple can donate their child for adoption and the second in which a single woman may donate her child for adoption.
The case before the Court was to determine whether the people in the cohabitation relationship could be equated with the couple for the purpose of commitment.
"In the case of spouses, the procedure ensures that both parents re-register; if the biological child is given by one of the biological parents, and that the other parent's whereabouts are unknown, the child will be regarded as an abandoned child and the procedure under Regulation 6 must be followed. a search for parents or legal guardians, ”the Court said.
The Court also gave effect to the JJ Act which states the restoration and protection of a child in need of care and protection. The first right to restitution was with the biological parents, then the adoptive parents, the adoptive parents, the caregivers and finally, the eligible people.
Although marriage as a social institution is based on personal law or state law such as the Special Marriage Act, the same does not affect the judgment of the Justice Judge, the Court agreed.
"In a cohabiting relationship, couples accept each other's rights and obligations. It is a further contract. The interest in such a relationship recognizes the reproductive rights of both of them."
Therefore, the Court further stated,
"There is no difficulty in holding that a child born in a foster relationship should be regarded as a child born of married people."
Moving on to the true matrix of the imminent case, the Court noted that the names of both applicants are included in the birth certificate and that the child's surname also reflects the father's name.
As the couple acknowledged their relationship, it was not for the Committee to inquire about the legal status of the marriage, the Court held.
"Once it is discovered that a child has been born in a couple, for all the purposes of the JJ Act, an investigation should be instituted as if the child belonged to a married couple," Bench emphasized. Therefore, any act of dedication had to be signed by both parents, it was said. When both parents did not sign and the whereabouts of the other parent are not known, the child should have been treated as an abandoned child and steps taken to determine the whereabouts of the parents, ”the decision was made.
The Court also ruled that the entire procedure for the surrender of a child for adoption was changed, since only the mother had signed the deed of adoption. Therefore, the Court held that the newly adopted parents did not receive the right because the procedure itself was illegal.
With this remark, the Court set aside the acquisition and ordered that the child to be restored to the couple.
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