2021 Supreme(Ker) 426

IN THE HIGH COURT OF KERALA AT ERNAKULAM
A.MUHAMED MUSTAQUE, KAUSER EDAPPAGATH, JJ.
XXXXXXXXXX – Appellant
Versus
State Of Kerala – Respondent
RPJJ.No.2 of 2021
Decided on : 09-04-2021

Point of law :Adoption of child - 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

Headnote:

United Nations Convention on the Rights of the Child – Article 8 – Adoption of child – Regulation 7 – Constitution of India, 1950 – Article 21 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 38, 35, 37, 40 – Live-in relationships – Deed of surrender – Adoption – 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 – Issues involved in this matter cannot be resolved without answering these pointed questions – 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. – 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. – 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

Finding of the court :

Once the declaration under Section 38 is found invalid, all consequential proceedings would also fall. – Court paused for a moment to issue notice to the adopted parents. – Court 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]. – Court 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 – Court 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. – Committee shall take necessary steps for initiating the 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. – 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. – 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. – 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. –

Result : Order Accordingly