Adoptive parents of girl child move SC after Kerala HC grants custody to biological parents
The adoptive parents of a girl child have moved the Supreme Court challenging a Kerala High Court judgment of April 9, which had set aside the adoption of the child on the ground that a deed of surrender had not been executed by both the biological parents.
A Bench of Justices Vineet Saran and Dinesh Maheswhari stayed the judgment of the Kerala High Court after the petitioners pointed out that the High Court had passed its verdict without hearing them.
“Considering the facts and circumstances of this case, in the meanwhile, the operation of the impugned order shall remain stayed,” the Court ordered.
Advocates Liz Mathew, Manisha Singh and Sonali Jain appeared for the petitioners (adoptive parents).
Background
On April 9, the Kerala High Court had allowed a petition filed by a couple who were in a live-in relationship, seeking to reclaim their child who had been surrendered for adoption by the mother alone at a time when the couple had drifted apart.
The woman gave up her child to the Child Welfare Committee when her live-in partner moved to another state and called off the relationship for a while. The woman even executed a Deed of Surrender in June to give up her child in adoption.
Treating the woman as an unwed mother, the Committee proceeded to give the child in adoption to a couple under the provisions of the Adoption Regulations, 2017 and Section 38 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act).
However, the couple later approached the High Court by way of a Habeas Corpus plea, seeking the return of the child after they were denied the same by the Committee.
The question before the High Court was whether a child born out a live-in relationship and acknowledged so by the mother of the child, would have to be treated as a child born to a married couple for the purposes of surrendering a child for adoption under the JJ Act.
The Court ruled in favour of the couple, holding that a woman in a live-in-relationship, acknowledging the biological father of the child born out of such a relationship, will have to be treated as a married woman for the purpose of JJ Act and the Adoption Regulations of 2017.
Only if a mother does not acknowledge any sort of relationship with the biological father will she be treated as an unmarried mother for the purpose of JJ Act, the Court clarified.
If a woman becomes a mother in a rape or sexual assault, or accidentally, or does not want to recognise or acknowledge the biological father, in such circumstances, she has to be treated as an unmarried mother, it added.
Therefore, the entire process followed in giving the child up for adoption was vitiated, since only the mother had signed the surrender deed. Hence, the High Court held that newly adoptive parents accrued no right since the process itself was illegal.
With these observations, the High Court set aside the adoption and ordered that the child be restored to the couple.
The adoptive parents have now challenged this judgment before the Supreme Court.
Appeal before Supreme Court
The appellants placed reliance on the Supreme Court judgment in Lakshmi Kant Pandey v. Union of India which had ordered for a three-month period to allow biological parents to reconsider their decision about relinquishment of the child.
“Pertinently, the three month period was reduced to two months in 2001 by way of Laxmi Kant Pandey v. Union of India, (2001) 9 SCC 379, by the Supreme Court in consideration of the best interest and welfare of the child and to accelerate the process of adoption,” the plea said.
Adoption creates a permanent relationship between the child and the adoptive parents, and the biological parents cannot reclaim the child, it was contended.
“Pertinently, the JJ Act defines adoption as ‘the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child’ such that the word ‘permanent’ denotes irrevocability of the process, that is, separation from biological parents,” the petition stated.
It was further submitted that the High Court has sought to ignore the valid legal proceedings culminating in the order dated February 2, 2021 passed by the Family Court, whereby petitioners were appointed as the adoptive parents and legal guardians of the child.
It is submitted that the aforesaid order created legal and vested rights in favour of the petitioners. However, the impugned judgment has resulted in setting aside of the order dated February 2, 2021, and therefore, the petitioners ought to have been heard by the High Court before passing the impugned judgment.
On the merits of the adoption procedure, the petitioners adverted to Clause 7(7) of the Adoption Regulations, 2017 issued under the JJ Act.
“The Adoption Regulations, 2017 issued under the JJ Act by the Central Government clearly provide that ‘in case of a child born out of wedlock, only the mother can surrender the child’ under sub-clause 7 of clause 7,” the plea highlighted.
Therefore, the Child Welfare Committee cannot be faulted for following the procedure as prescribed by the statute, the petitioner claims.
When the matter was heard on Monday, the Court noted that the Kerala High Court delivered its verdict without hearing the adoptive parents.
“Counsel for the petitioners submitted that the impugned order has been passed by the High Court without the petitioners being party to the proceedings before the High Court and no opportunity was thus afforded to the petitioners, even though the petitioners are directly affected as the adopted child has been with them since 19th October, 2020,” the Supreme Court noted.
It, therefore, issued notice in the matter and stayed the High Court order.
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