Ker HC | Whether a Child born out of a live-in relationship is to be treated as a child born to a married couple? Status of Children in a live-in relationship & mother’s decision to recognize fatherhood of child || High Court unwinds

Kerala High Court: The Division Bench of A. Muhamed Mustaque and Kauser Edappagath, JJ., held that:

“…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.”

Present matter unbundles 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 the legal vortex.

Factual Matrix

In the instant case, the couple – John and Anitha are Christian and Hindu by their faith. The couple realized that their intimacy knew no bounds to chart a new path in their life. They started to live together at Ernakulam, 65 km away from the parental house of Anitha. Opposition came from their own kith and kin. They waited to officially marry once their parents were 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 the names of father and mother of the child.

Issue in the present case revolves around the importance of the birth certificate.

In the revision memorandum it was stated that the John broke the relationship with Anitha and due to anxiousness, Anitha made attempts to contact John but all were in vain after which she had no option other than to approach the Child Welfare Committee, Ernakulam and handed over the child to the Committee.

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.

Further it was stated in view of the above that,

Desperation and plight of the motherhood reflected through the chat messages with the social worker depicted the care for the baby from the womb of the person, Anitha.

Since Anitha had executed the Deed of Surrender the said deed permitted the Committee to give the child for adoption.

Adding to the above, it was stated that 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. Child was thereafter given in adoption to a couple by the Family Court order on 02-02-2021.

Petitioners approached the Court claiming themselves as a live-in relationship couple approached the Court.

Government Pleader and counsel appearing for the Committee submitted before the Court that the child had already been given in adoption and based on the submissions the Court had also opined that a writ of Habeas would not lie as the proceedings concluded under JJ Act have a legal colour.

Analysis, Law and Decision

Central issue in the present matter was more related to a perplexing mind; accepting and recognizing 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 the context of juvenile justice does the law differentiate unwed couple and legally wed couple to recognize biological parents?

Section 38 of the Juvenile Justice Act declares the procedure for declaring a child legally free for adoption.

Separate procedure has been referred for orphan and abandoned child and a distinct procedure for a surrendered child.

Which of the procedures have to be followed was the question involved in the case.

Under Section 38 of the JJ Act, the procedure for declaration has been made for the abandoned child and surrendered child keeping in mind the paramount parental rights of biological parents.

Bench noted that the Committee had followed the procedure for surrendering the child applicable to an unmarried mother.

Following are the circumstances wherein normally a child needs care and protection from the State/Committee:

  1. Orphan or abandoned child
  2. Surrendered child

‘Surrendered child’ needs further classification under the law:

  1. surrendered by a married couple
  2. Surrendered by an unmarried mother.

Question that perplexed Court’s mind:

High Court expressed while placing their doubt that whether it can hold a couple in a live-in relationship not a married couple for the purpose of law related to surrender?

Married Couple v. Unwed Mother

Court elaborated that a married couple has to be understood in contrast to an unwed mother. Unwed mother must 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.

“… 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 Adoption Regulations 7(4), 7(7) and 7(21).”

Married Couple: Deed of Surrender

The procedure in case of a married couple 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.

Context of Juvenile Justice Act | Whether a married couple includes a couple in a live-in relationship or not?

Parental right of biological parents is a natural right not preconditioned by institutionalization of legal marriage.

Live-in relationship

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.

 Supreme Court in its decision of D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469, considered live-in relation 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.

(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.

Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

Bench remarked that, 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.

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.

No relevance of Legal Marriage

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, and in such circumstances, the legal marriage has no relevance.

In matters of surrender by unwed mother no such inquiry is contemplated as she does not acknowledge any relationship with the biological father. 

A woman’s womb is precious possession of her personhood and no one can claim right over it; except with her consent.

Woman’s decision on fatherhood

Bench expressed that it is for the woman to recognize and decide on the 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

Adding to the above, Court stated that if at the time of conception, the mother 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.”

 Hence, in view of the above discussion, it can be held that a child born in a live-in relationship also has to be construed as a child born to a married couple.

In view of the facts and circumstances of the case, High Court noted that father’s name was disclosed to the hospital authority and name of the child was also given in the birth certificate in which father’s name was mentioned.

Birth certificate is a crucial document for public authority to verify that the child is born to a married couple or not.

 High Court held that Committee is not responsible 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. 

Bench held that 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.

Once the declaration under Section 38 is found invalid, all consequential proceedings would also fall.

While parting with the decision, High Court added that:

“…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),

 In the 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.”

Therefore, the certificate issued under Section 38 of the JJ Act is set aside and the revision was allowed and in view of the biological father’s willingness to take care of the child, Committee to consider the rights to claim for restoration under Section 37 and 40 of the JJ Act.[ XXXXXXXXXX v. State of Kerala, 2021 SCC OnLine Ker 1709, decided on 09-04-2021]


Advocates before the Court: 

By Advs. Sri. Rajit

Smt. Lekshmi P. Nair

R6 by Adv. Smt. B. Bindu

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