SC Stays Kerala High Court Judgment Allowing Live-In Couple To Reclaim Their Surrendered Biological Child

The Supreme Court on Monday stayed the judgement passed by the Kerala High Court that restored the custody of a surrendered child to his biological parents, a couple in a live-in relationship.

Following an appeal filed by a couple to whom the child had been surrendered, Justices Vineet Saran and Dinesh Maheshwari stayed the landmark judgement.

Advocate Liz Mathew filed the Special Leave Petition, which challenges the judgement on a number of grounds.

In their plea, the couple claimed that the biological parents were not properly notified until the child's custody was granted to them. They further claimed that, despite having followed all of the protocols for adopting a child, the Child Welfare Committee was attempting to reclaim the biological child's rights in favour of the biological parents.

It is also mentioned that the Adoption Regulations of 2017 under the Juvenile Justice Act, stipulates that "In case of a child born out of wedlock, only the mother can surrender the child.", reported Live Law.

Kerala High Court Judgement

On April 10, the Kerala High Court ruled that a child born to a live-in couple would be considered as a child born to a married couple for the purposes of the Juvenile Justice Act and Adoption Guidelines.

Anitha (name changed by the court to protect her identity) gave her child to a Child Welfare Committee (Committee) after her husband John moved to another state and broke up with her for a while.

Anitha and John's families objected to their relationship because they were of separate religious faiths. While trying to contact her partner, Anitha handed over her child to the Child Welfare Committee last year in May, administrating an act of surrender in June.

Under the provisions of the Adoption Regulations, 2017 and Section 38 of the Juvenile Justice (Care and Protection) Act, 2015, the Child Welfare Committee continued to place the child for adoption with a couple, considering Anitha as a single mother.

After these developments took place, Anitha and John filed a habeas corpus petition with the Kerala High Court, requesting that their child be returned to them.

The court mentioned that couples in a live-in partnership have a right to restoration as well, notwithstanding the fact that biological parents' parental rights are a fundamental right not preconditioned by the institutionalisation of legal marriage.

As a result, the Supreme Court ruled that holding that a child born in a live-in partnership must be construed as a child born to a married couple is not complicated and that the procedure for surrender applicable to a married couple should have been extended in this case.

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