Kerala High Court
Xxxxxxxxxx vs State Of Kerala on 9 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943
RPJJ.No.2 OF 2021
REVISION PETITIONER/S:
1 XXXXXXXXXX
2 XXXXXXXXXX
BY ADVS.
SRI.RAJIT
SMT.LEKSHMI P. NAIR
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY, DIRECTORATE OF WOMEN
AND CHILD DEVELOPMENT, THIRUVANANTHAPURAM 695 001.
2 DIRECTOR GENERAL OF POLICE,
POLICE HEADQUARTERS
THIRUVANANTHAPURAM 695 001.
3 SUPERINTENDENT OF POLICE,
POWER HOUSE JUNCTION, SUB JAIL ROAD, PERIYAR NAGAR,
ALUVA, ERNAKULAM DISTRICT 683 101.
4 THE CHAIRPERSON,
CHILD WELFARE COMMITTEE, THOTTAKKATTUKARA, ALUVA,
ERNAKULAM, KERALA, 683 108.
5 DISTRICT CHILD PROTECTION OFFICER,
LINE NO. 1, NEAR SIVA TEMPLE, SP CAMP OFFICE, 683
108.
R.P.(JJ).No.2/2021
-:2:-
6 VALSALYAM SISUBHAVAN INSTITUTE OF SISTERS
OF NAZARETH REOCK WELL ROAD HMT COLONY, P.O. KALAMASSERY
ERNAKULAM 683 503, REPRESENTED BY CONTACT PERSON SR.
JAISY.
R6 BY ADV. SMT.B.BINDU
THIS REV.PETITION(JUVENILE JUSTICE) HAVING BEEN FINALLY HEARD ON
25-03-2021, THE COURT ON 09-04-2021 PASSED THE FOLLOWING:
-:3:-
A.MUHAMED MUSTAQUE & DR.KAUSER EDAPPAGATH, JJ.
=========================
R.P.(JJ).No.2/2021 "C.R."
~~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 9th day of April, 2021
O R D E R
A.Muhamed Mustaque, J.
The death is not the greatest loss in life. The
greatest loss is what one dies inside us while we
live(1). This case unbundle the trauma of a couple in a
live-in relationship, isolation of a single mother,
love of mother for her child, rights of biological
father, entangled in legal vortex.
2. The couple in this revision, John and Anitha
(names changed to protect their privacy) met during the
tragic floods in the year 2018 happened in Kerala. They
are active in NGOs. John is a Christian and Anitha is
Hindu by their faith. Anitha is from Thrissur. Soon
the couple realised that their intimacy knew no bounds
to chart a new path in their life. They start to live
together at Ernakulam, 65 kms away from the parental
house of Anitha. Opposition came from their own kith
and kin. They waited to officially marry once their
1 Norman Cousins Author of Anotomy of illness
R.P.(JJ).No.2/2021
parents are convinced. But the biological instincts of the
couple could not be arrested. Anitha became pregnant in
the month of May 2019. She gave birth to a baby girl on
3/2/2020 in the Government Hospital, Aluva. The birth
certificate indicates names of father and mother of the
child. The entire case perhaps revolves around the
importance of the birth certificate, to decide the outcome
of this case.
3. John is an artist. He seems to have travelled to
Karnataka to act in a Malayalam Film. He appears to have
broke the relationship with Anitha for a while or remained
elusive (as narrated in the revision memorandum). Anxious
Anitha made attempts to contact John; but in vain.
Isolated, desperate and repressed Anitha had no option but
to approach the Child Welfare Committee, Ernakulam, and
handed over the child to the Committee on 8/5/2020. She
executed a Deed of Surrender on 8/6/2020. Thereafter, she
constantly kept in touch with the Committee and the Child
Care Institution where the child was put up, to keep a
track of the wellbeing of the child. Chat messages of
Anitha with the Social Worker depicts how vulnerable it is
for a woman becoming mother not in a legally wedded
relation. Desperation and plight of the motherhood
reflected through the chat messages that depicts the care
for the baby from the womb of the person, Anitha.
R.P.(JJ).No.2/2021
4. The Committee set the law into motion. Deed of
surrender executed by Anitha in no uncertain terms permits
the Committee to give the child in adoption. The
Committee, noting that Anitha is an unmarried mother,
followed the procedure that delineated for surrender of the
child by an unwed mother as referable under the Adoption
Regulations, 2017. On completion of the procedure, the
Committee declared that the child is legally free for
adoption in the manner contemplated under Section 38 of the
Juvenile Justice (Care and Protection of Children) Act,
2015 (hereinafter referred to as "JJ Act"). This
declaration was on 17/8/2020. The child thereafter was
given in adoption to a couple by the order of the Family
Court, Ernakulam, on 2/2/2021.
5. The petitioners claiming themselves as live-in
relationship couple approached this Court with a writ of
habeas on 10/2/2021. Notice was issued to the State and
the Child Welfare Committee. The learned Government
Pleader and counsel appearing for the Committee submitted
before the Court that the child had already been given in
adoption. Based on this submission, on 11/2/2021, the
Court was of the firm opinion that a writ of habeas as such
would not lie as the proceedings concluded under the JJ Act
have legal colour. However, the Court, noting Section 102
of the JJ Act, suo motu converted it to a revision petition
as contemplated in the aforesaid provision.
R.P.(JJ).No.2/2021
6. Legality and propriety of the declaration under
Section 38 of JJ Act therefore, has to be tested invoking
the revisional power of this Court in this matter. If this
Court finds the entire proceedings leading to the
declaration under Section 38, is held as bad, necessarily,
all consequential proceedings would fall into ground.
7. The central issue in this context perhaps is more
related to a perplexing mind; accepting and recognising
live-in relationships. Did the law differentiate between
unwed and legally wed couple in matters or relationships
not connected with marriage, as a social institution? In
other words, to put it in the context of juvenile justice
does the law differentiate unwed couple and legally wed
couple to recognize biological parents. The issues
involved in this matter cannot be resolved without
answering these pointed questions.
8. We shall answer these questions when we advert to
the procedure required to be followed regarding the
declaration that the child is legally free for adoption.
9. Section 38 of JJ Act set out different procedures
for the declaration as above. Separate procedure has been
referred for orphan and abandoned child and a distinct
procedure for a surrendered child. Which of the procedures
R.P.(JJ).No.2/2021
have to be followed is the question involved in this case.
It is appropriate to refer Section 38, which reads thus:
38. Procedure for declaring a child legally free for adoption: (1) In case of
orphan and abandoned child, the Committee shall make all efforts for tracing
the parents or guardians of the child and on completion of such inquiry, if
it is established that the child is either an orphan having no one to take
care, or abandoned, the Committee shall declare the child legally free for
adoption:
Provided that such declaration shall be made within a period of two months
from the date of production of the child, for children who are up to two
years of age and within four months for children above two years of age:
Provided further that notwithstanding anything contained in this regard in
any other law for the time being in force, no first information report shall
be registered against any biological parent in the process of inquiry
relating to an abandoned or surrendered child under this Act.
(2) In case of surrendered child, the institution where the child has been
placed by the Committee on an application for surrender, shall bring the case
before the Committee immediately on completion of the period specified in
section 35, for declaring the child legally free for adoption.
(3) Notwithstanding anything contained in any other law for the time being
in force, a child of a mentally retarded parents or a unwanted child of
victim of sexual assault, such child may be declared free for adoption by the
Committee, by following the procedure under this Act.
(4) The decision to declare an orphan, abandoned or surrendered child as
legally free for adoption shall be taken by at least three members of the
Committee.
(5) The Committee shall inform the State Agency and the Authority regarding
the number of children declared as legally free for adoption and number of
cases pending for decision in the manner as may be prescribed, every month.
10. The distinction in Section 38 for the
procedure of declaration has been made for abandoned child
and surrendered child keeping in mind the paramount
parental rights of the biological parents. Therefore, it
R.P.(JJ).No.2/2021
is necessary to distinguish abandoned child and surrendered
child with reference to the procedure as well.
11. We shall now refer to the meaning of
abandoned child and its procedure for declaration under
Section 38. Section 2(1) defines abandoned child as
follows:
(1) "abandoned child" means a child deserted by his biological or adoptive parents or guardians,
who has been declared as abandoned by the Committee after due inquiry;
12. Abandonment refers to voluntary relinquishment of
a known right. Parental right is a natural as well as
universally recognised legal right. Child also has a
fundamental right to preserve his identity with biological
parents. It is a necessary concomitant with right to life
as protected under Article 21 of the Constitution of India.
Article 8 of the United Nations Convention on the Rights of
the Child, clearly spell out the right of identity of the
child with the family. Unlawful interference of such
rights would deny the right to life guaranteed under
Article 21 of the Constitution. Abandonment, therefore,
has to be understood as an involuntary relinquishment or
termination of parental right. This enables the State to
protect the welfare of the child through the procedure laid
down under law. In order to protect the welfare of the
child, JJ Act commands the constitution of the Child
Welfare Committee. Sections 31, 36 and 38 prescribe
R.P.(JJ).No.2/2021
procedure for the Committee in the matter of abandoned
children. It is a mandatory procedure for the Committee to
make all efforts for tracing the parents or guardians of
the child in the light of Section 38(1). As seen from the
above provision, only after it is established that the
child is either an orphan having no one to take care of or
abandoned, the committee is competent to declare that the
child is legally free for adoption. For children who are
upto two years of age, such a declaration has to be made
within two months from the date of production of the child
before the Committee.
13. For surrender of a child, a distinct provision
has been made as referable under Section 35 of the JJ Act.
Section 2(60) defines surrendered child as follows:
(60) "surrendered child" means a child, who is relinquished by the parent or
guardian to the Committee, on account of physical, emotional and social
factors beyond their control, and declared as such by the Committee;
14. Section 35(1) speaks about surrender by a single
parent. Section 35(3) speaks about surrender by both the
parents. Surrender of child therefore, has to be
understood as voluntary relinquishment or termination of
parental rights by biological parents or guardians. The
dichotomy of single parent and parents demands elaboration
in the context of Section 35. Law makers left it to the
choice of rule makers to explain. Declaration under Section
38, declaring that the child is free for adoption, is
R.P.(JJ).No.2/2021
intrinsically related to the obligation that cast upon the
Committee to restore the child in need of care and
protection as prescribed in a manner under Sections 37 and
40 of JJ Act. One of the modes of restoration prescribed
in Section 40 is restoration with adoptive parents. Section
68 of JJ Act confers regulations making power on the
Central Adoption Resource Authority. Accordingly, Adoption
Regulations, 2017 were formulated. Therefore, the procedure
as mentioned in the Adoption Regulations also assumes
importance to differentiate the procedure for declaration
under Section 38 of an abandoned child and surrendered
child.
15. It is appropriate to refer Regulations 6(6)
to 6(14) of the Adoption Regulations:
(6) For tracing out the biological parents or the legal guardian(s), the
Child Welfare Committee, after taking into account the risk factors, and in
the best interest of the child, may direct the District Child Protection Unit
to advertise the particulars and photograph of an orphan or abandoned child
in a national newspaper with wide circulation within three working days from
the time of receiving the child and also ensure entry of data in the
designated portal in its missing or found column by the concerned Child Care
Institution or Specialised Adoption Agency.
(7) In case where the child is from another State, the publication shall be
done in the known place of origin of the child in the local language and such
publications shall be facilitated by State Adoption Resource Agency
concerned.
(8) Wherever District Child Protection Unit is not functional, the District
Magistrate concerned shall get such advertisement issued.
(9) In case the biological parents or legal guardian cannot be traced,
despite the efforts specified in sub-regulations (6) to (8), the District
R.P.(JJ).No.2/2021
Child Protection Unit shall accordingly, submit a report to the Child Welfare
Committee within thirty days from the date of production of the child before
the Child Welfare Committee.
(10) The Child Care Institution or Specialised Adoption Agency shall submit a
report to the Child Welfare Committee, immediately on completion of thirty
days from the date of production of the child, before the Child Welfare
Committee and the report shall include any information revealed by the child
during his short term placement and details of person(s) whosoever approached
for claiming the child, if any.
(11) In case the report from the local police regarding the non-traceability
of the biological parents or legal guardian is not submitted within two or
four months in the case of an abandoned child less than two or four years of
age respectively, such report shall be deemed to have been given.
(12) The Child Welfare Committee shall use the designated portal to ascertain
whether the abandoned child or orphan child is a missing child.
(13) The Child Welfare Committee, after taking actions as per the provisions
of the Act, rules made thereunder and these regulations shall issue an order
signed by any three members of the Child Welfare Committee declaring the
abandoned or orphan child as legally free for adoption in the format at
Schedule I within a period of two or four months, from the date of production
of the child before the Child Welfare Committee, in case of a child upto two
or above two years of age respectively.
(14) The inquiry under section 36 of the Act and the order declaring an
abandoned or orphan child as legally free for adoption by the Child Welfare
Committee under section 38 of the Act shall be completed in the district
where the child was initially found, or in the district to which the child is
shifted under orders of the Child Welfare Committee.
16. It is also appropriate to refer the relevant
procedure for 'surrendered child' in Regulation 7 of
Adoption of Regulations :
7. Procedure relating to a surrendered child.- (1) A parent or guardian
wishing to surrender a child under subsection (1) of section 35 of the Act,
shall apply to the Child Welfare Committee in the Form 23 of Juvenile Justice
(Care and Protection of Children) Model Rules, 2016.
R.P.(JJ).No.2/2021
(4) If the surrendering parent is an unmarried mother, the Deed of Surrender
may be executed in the presence of preferably any single female member of the
Child Welfare Committee.
(5) If a child born to a married couple is to be surrendered, both parents
shall sign the Deed of Surrender and in case one of them is dead, death
certificate is required to be furnished in respect of the deceased parent.
(6) If a child born to a married couple is to be surrendered by one
biological parent and the whereabouts of the other parent are not known, the
child shall be treated as abandoned child and further procedures in
accordance with regulation 6 of these regulations shall be followed.
(8) If the surrender is by a person other than the biological parents who is
not appointed as a guardian by a court of law, the child shall be treated as
abandoned child and further procedures in accordance with regulation 6 shall
be followed.
(11) To discourage surrender by biological parents, efforts shall be made by
the Specialised Adoption Agency or the Child Welfare Committee for exploring
the possibility of parents retaining the child, which shall include
counselling or linking them to the counselling center set up at the Authority
or State Adoption Resource Agency, encouraging them to retain the child and
explaining that the process of surrender is irrevocable.
(15) In case the surrendering biological parent has not claimed back the
child during the reconsideration period, the same shall be intimated by the
Specialised Adoption Agency to the Child Welfare Committee on completion of
sixty days from the date of surrender.
(16) The reconsideration period for the biological parents is specified in
sub-section (3) of section 35 of the Act and no further notice shall be
issued to the surrendering parents.
(21) The surrender of a child by an unwed mother before a single woman member
of the Child Welfare Committee shall be considered as surrender of the child
before the Committee as envisaged under section 35 of the Act, and her right
to privacy has to be protected.
(23) The surrender of child or children by the biological parents for
adoption by the step-parent shall be before the Child Welfare Committee, for
adoption, on the ground of emotional and social factors as envisaged under
subsection (1) of section 35 of the Act, in the format given at Schedule XXI.
R.P.(JJ).No.2/2021
17. The procedure under Regulation 7 clearly
distinguishes surrender by unmarried mother as from married
couple. The entire legal issue is surmounted on the
legality of the surrender by Anitha, unilaterally.
Therefore, if surrender is legally valid, the entire
challenge in this case comes to an end. As seen from the
perusal of records produced before this Court by the
Committee, they have followed the procedure for
surrendering the child applicable to an unmarried mother.
18. There are two circumstances wherein normally
a child needs care and protection from the State/Committee:
i. Orphan or abandoned child
ii. Surrendered child
'Surrendered child' needs further classification under law:
i. surrendered by married couple
ii. Surrendered by an unmarried mother.
19. Law posit in this matter on the question of
definition of married couple under JJ Act. Can we hold
that a couple in a live-in relationship is not a married
couple for the purpose of law related to surrender? This
question has perplexed our mind. Interpretation of law
must be contextually relevant based on the text of
R.P.(JJ).No.2/2021
legislation. Married couple has to be understood in
contrast to an unwed mother. Unwed mother has to be
understood as a mother who begotten a child as a result of
sexual assault or in a casual relationship. Law in such
circumstances places importance to the right of such
mothers. In such circumstances, an unmarried mother would
be recognised as a single parent and surrender by such
mother is legally considered as valid in the light of
Section 35(1) of JJ Act and Regulations 7(4), 7(7), &
7(21).
20. In the matter of married couple, the
procedure ensures that both the parents execute deed of
surrender and; if the child born to a married couple and
surrendered by one of the biological parent, and
whereabouts of the other parent are not known, the child
shall be treated as an abandoned child and procedure under
Regulation 6 will have to be followed. This procedure
mandates an inquiry to trace out the biological parents or
the legal guardians.
21. The point therefore, to be considered is whether a
married couple includes a couple in a live-in relationship
or not. This has to be deliberated in the context of the
concept of juvenile justice under law.
R.P.(JJ).No.2/2021
22. The scheme of the enactment itself is to protect
the welfare of the child. As seen from Sections 37 and 40
of JJ Act itself, the prime aim of the law is restoration
and protection of the child in a sequential order as
mentioned in the explanation. In the first place,
restoration is with parents. Then in the order of adoptive
parents, foster parents; guardian or fit person.
Attempting to trace out the biological parents in the
matter of abandonment is to restore the child with the
biological parents. Marriage as a social institution
depends upon personal law or secular law like Special
Marriage Act. It has no bearing on the concept of Juvenile
Justice. Parental right of biological parents is a natural
right not preconditioned by institutionalization of legal
marriage. In a live-in relationship, a couple acknowledges
the mutual rights and obligations. It is more of a
contract. Offspring in such a relationship is
acknowledging biological parental rights of both. In
D.Velusamy vs D.Patchaiammal [(2010) 10 SCC 469], the
Hon'ble Supreme Court laid down certain parameters for
live-in relationship in the context of the Protection of
Women from Domestic Violence Act, 2005. The Apex Court
considered it similar to the marriage provided it fulfills
the requirements referred as follows:
(a) The couple must hold themselves out to society as being akin to
spouses.
R.P.(JJ).No.2/2021
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal
marriage, including being unmarried.
(d) They must have voluntarily cohabited and held themselves out to
the world as being akin to spouses for a significant period of
time.
(see `Common Law Marriage' in Wikipedia on Google) In our opinion a
`relationship in the nature of marriage' under the 2005 Act must also fulfill
the above requirements, and in addition the parties must have lived together
in a `shared household' as defined in Section 2(s) of the Act. Merely
spending weekends together or a one night stand would not make it a `domestic
relationship'.
23. In the context of what we said earlier, the
married couple or unwed mother has to be understood in the
backdrop of juvenile justice. If a mother does not
acknowledge any sort of relationship with the biological
parent such mother has to be treated as an unmarried mother
for the purpose of Juvenile Justice. A woman becoming a
mother in a rape or sexual assault, or accidentally, does
not want to recognise or acknowledge biological father; in
such circumstances, such mother has to be treated as an
unmarried mother. The 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 purpose of Juvenile Justice. If the
artificial difference of the couple distinguishing them
'legally married' and 'not legally married' has no bearing
in the ultimate object of law, the court must adopt an
approach of interpretation to serve the object of law
R.P.(JJ).No.2/2021
giving it a meaning to promote law and not to denounce the
same. The dominant object of law in making the distinction
between the married couple and unmarried mother is in the
context of the nature of inquiry to be conducted for
tracing the biological parents to restore the child with
biological parents or guardian. The legal marriage has no
relevance at all in such circumstances. In matters of
surrender by unwed mother no such inquiry is contemplated
as she does not acknowledge any relationship with the
biological father. She may be a victim of sexual assault or
begotten a child accidentally. If statutory provision is
not assigned the meaning consistent with the object of law,
it may take away the right of the biological father which
statute never intended. Taking away of right of biological
father would arise only in extreme circumstances where he
has no right to claim the fatherhood.
24. A woman's womb is precious possession of her
personhood and no one can claim right over it; except with
her consent.
25. In Suchita Srivastava & Anr v. Chandigarh
Administration [(2009) 9 SCC 1], the Apex Court recognized
woman's right to make reproductive choices as a dimension
of 'personal liberty'. In Revanasiddappa and Another v.
Mallikarjun and Other [(2011) 11 SCC 1] apex court while
considering the coparcenry rights of illegitimate children
R.P.(JJ).No.2/2021
in void marriage in the wake of amendment to Section 16 (3)
of Hindu Marriage Act in the year 1976 observed in para 30
as follows:
With changing social norms of legitimacy in every society, including
ours, what was illegitimate in the past may be legitimate today. The concept
of legitimacy stems from social consensus, in the shaping of which various
social groups play a vital role. Very often a dominant group loses its
primacy over other groups in view of ever changing socio-economic scenario
and the consequential vicissitudes in human relationship. Law takes its own
time to articulate such social changes through a process of amendment. That
is why in a changing society law cannot afford to remain static. If one looks
at the history of development of Hindu Law it will be clear that it was never
static and has changed from time to time to meet the challenges of the
changing social pattern in different time.
26. In K.S.Puttaswamy v. Union Of India And Ors.
[(2017) 4 KLT 1] at paras.72 and 169 held as follows:
72. The decision in Suchita Srivastava dwells on the statutory right of a
woman under the MTP Act to decide whether or not to consent to a
termination of pregnancy and to have that right respected where she does
not consent to termination. The statutory recognition of the right is
relatable to the constitutional right to make reproductive choices which
has been held to be an ingredient of personal liberty under Article 21.
The Court deduced the existence of such a right from a woman's right to
privacy, dignity and bodily integrity.
169. Privacy of the individual is an essential aspect of dignity. Dignity
has both an intrinsic and instrumental value. As an intrinsic value, human
dignity is an entitlement or a constitutionally protected interest in
itself. In its instrumental facet, dignity and freedom are inseparably
inter-twined, each being a facilitative tool to achieve the other. The
ability of the individual to protect a zone of privacy enables the
realization of the full value of life and liberty. Liberty has a broader
meaning of which privacy is a subset. All liberties may not be exercised
in privacy. Yet others can be fulfilled only within a private space.
Privacy enables the individual to retain the autonomy of the body and
mind. The autonomy of the individual is the ability to make decisions on
R.P.(JJ).No.2/2021
vital matters of concern to life. Privacy has not been couched as an
independent fundamental right. But that does not detract from the
constitutional protection afforded to it, once the true nature of privacy
and its relationship with those fundamental rights which are expressly
protected is understood. Privacy lies across the spectrum of protected
freedoms. The guarantee of equality is a guarantee against arbitrary state
action. It prevents the state from discriminating between individuals. The
destruction by the state of a sanctified personal space whether of the
body or of the mind is violative of the guarantee against arbitrary state
action. Privacy of the body entitles an individual to the integrity of the
physical aspects of personhood. The intersection between one's mental
integrity and privacy entitles the individual to freedom of thought, the
freedom to believe in what is right, and the freedom of self-
determination. When these guarantees intersect with gender, they create a
private space which protects all those elements which are crucial to
gender identity. The family, marriage, procreation and sexual orientation
are all integral to the dignity of the individual. Above all, the privacy
of the individual recognises an inviolable right to determine how freedom
shall be exercised. An individual may perceive that the best form of
expression is to remain silent. Silence postulates a realm of privacy. An
artist finds reflection of the soul in a creative endeavour. A writer
expresses the outcome of a process of thought. A musician contemplates
upon notes which musically lead to silence. The silence, which lies
within, reflects on the ability to choose how to convey thoughts and ideas
or interact with others. These are crucial aspects of personhood. The
freedoms under Article 19 can be fulfilled where the individual is
entitled to decide upon his or her preferences. Read in conjunction with
Article 21, liberty enables the individual to have a choice of preferences
on various facets of life including what and how one will eat, the way one
will dress, the faith one will espouse and a myriad other matters on which
autonomy and self-determination require a choice to be made within the
privacy of the mind. The constitutional right to the freedom of religion
under Article 25 has implicit within it the ability to choose a faith and
the freedom to express or not express those choices to the world. These
are some illustrations of the manner in which privacy facilitates freedom
and is intrinsic to the exercise of liberty. The Constitution does not
contain a separate article telling us that privacy has been declared to be
a fundamental right. Nor have we tagged the provisions of Part III with an
alpha suffixed right of privacy: this is not an act of judicial
redrafting. Dignity cannot exist without privacy. Both reside within the
inalienable values of life, liberty and freedom which the Constitution has
recognised. Privacy is the ultimate expression of the sanctity of the
individual. It is a constitutional value which straddles across the
spectrum of fundamental rights and protects for the individual a zone of
choice and self-determination.
R.P.(JJ).No.2/2021
27. It is for the woman to recognize and decide on
recognition of fatherhood of child. If she chooses the
preference to acknowledge the biological father at the
time of conceiving, the father has every right to be
recognized as a biological father. Woman alone has the
right of choice on her body and motherhood. It is the time
when she exercises the option on conception that reckons -
a child is born to a married couple or unmarried couple.
If at the time of conception, she has not recognized the
right of fatherhood, in the context of JJ Act, a man has no
right to recognize himself as the biological father, except
with her consent and; she continues to be recognized as an
unwed mother for the purpose of JJ Act. Decisional autonomy
is the key in privacy rights.Once a woman acknowledges the
biological father that cannot be questioned to deny the
right of biological father on the ground of want of legal
marriage. Any such denial would amounts to encroaching up
on her decisional autonomy and freedom to choose. JJ Act
intends to exclude only such biological father, who became
father without the consent of the woman. Thus in the light
of scheme of law as above 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.
28. 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
R.P.(JJ).No.2/2021
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.
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
R.P.(JJ).No.2/2021
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.
31. Before we part with the judgment, we may add, in
a country where the people worship Goddess, in the land
where people have been taught about woman: Yatra naryastu
pujyante ramante tatra Devata, yatraitaastu na pujyante
sarvaastatrafalaahkriyaah". (Manusmriti (3.56)). [Gods
abide where women are worshiped and all actions go futile
where they are dishonoured](Manusmriti 3:56)( 2). In the
2 2 Manusmriti - The Constitution of Vedic Society by Dr.R.G.Chaturvedi
R.P.(JJ).No.2/2021
State where we boast cent percent literacy, our attitude to
woman is despising; a single mother has no financial or
social support. She faces emotional challenges and forced
to believe she is destined to be isolated as result of
guilt. She gets hardly any support from the system. It is
time for the Government to evolve a scheme to support the
single mother. The anomie Anitha had to face as a single
mother is the hurdle created by the society. Anitha never
attempted to exterminate her womb; she bore the pain to
give birth; like every mother she loved to care the child...
but was not allowed by circumstances in the society. She
thought without support of man, she cannot survive. If a
woman feels she is nothing without the support of the man
that is the failure of the system. She shall not succumb to
the temptation of giving up. The power of human in this
Universe is the power of motherhood. It is for the State to
make her realize that her struggle with the forces
undermining her existence can be validated with the support
of rule of law. That self belief must be her identity and
respect due to her.
32. Accordingly, we set aside the certificate issued
under Section 38 and allow this revision. In view of the
willingness of the biological father to take care of the
child, we direct the Committee to consider his rights to
claim for restoration under Sections 37 and 40 of JJ Act.
The Committee shall take necessary steps for initiating the
R.P.(JJ).No.2/2021
proceedings for restoration in accordance with law within a
period of one month. Care and protection of the child with
the adoptive parents would depend upon the outcome of such
decision of Committee. No order as to costs.
N.B.
In order to protect the privacy of parties involved,
the parties name shall be masked while uploading the
judgment. Publishing the names of parties is prohibited
without their consent. We noticed in certified copy issued
by the Family Court name of adoptive parents is disclosed.
Confidentiality of adoptive parents have to be maintained
in public portal and adoption records under Regulation 45
of the Adoption Regulations. We direct the Registrar
(District Judiciary) to give necessary directions to all
the Family Courts in the State to mask the names of
adoptive parents while issuing the certified copies.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
ms
R.P.(JJ).No.2/2021
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE BIRTH CERTIFICATE ISSUED
BY THE GOVT. HOSPITAL ALUVA DATED 3.6.2020
EXHIBIT P2 A TRUE COPY OF THE SURRENDER SIGNED BY THE
PETITIONER DATED 08.06.2020.
EXHIBIT P3 A TRUE COPY OF THE CYCLOSTYLED CERTIFICATE
DATED 17.08.2020.
EXHIBIT P4 A TRUE COPY OF THE ABOVE PERMISSION SLIP
DATED 27.07.220 ISSUED BY THE 4TH
RESPONDENT.
