The bench of Justices A Muhamed Mustaque and Dr Kauser Edappagath ordered that the procedure followed by the Child Welfare Committee while giving the child up for adoption was legally unsustainable.
The facts of the case were that Anitha and John (name changed by the court to protect the identity) gave birth to a child in a live-in relationship. Their marriage was not concluded due to religious differences in their families. John left the state and thus broke a live-in relationship. Last June, Anitha gave her child to Child Welfare Committee in this anxiety. The Court held that the Committee did not permission to give the child in adoption as it did in February 2021. Anitha and John both fuled writ of Habeus Corpus for returning their child.
The Court opined "In the matter of married couple, the procedure ensures that both the parents execute a deed of surrender and; if the child born to a married couple and surrendered by one of the biological parents, and whereabouts of the other parent are not known, the child shall be treated as an abandoned child and procedure under Regulation 6 (of the Adoption Regulations) will have to be followed. This procedure mandates an inquiry to trace out the biological parents or the legal guardians."
The Court held that the Act is for the welfare and protection of a child. The first right of restoration is with parents, then adoptive parents. The Court also held that parental rights are not dependent on marriage which is a social institution rather these rights are natural.
Thus the Court ordered to restore the child to its natural parents.