Kerala High Court On Hurdles Faced By Single Mothers: Forced To Live With Guilt, No Support From System

Facts to be considered

• A Hindu woman and Christian man had met during the Kerala floods and grew close during their period of work leading to staying in Live-in relationship.
• The woman got pregnant and gave birth to a baby girl.
• The man was elusive for a while and when the constant attempts at contacting the man failed, she decided to give up the baby for adoption with a deed of surrender.
• The woman was treated as an unwed mother.
• The man and woman later reconciled and approached the Committee where they were denied the return of their baby.
• The couple approached the High Court with a writ of Habeas Corpus.

Provision involved

• Section 38 of Juvenile Justice Act specifies the procedure which makes a child free for adoption.
• The Section 38 (2) of the Act mentions that when a child is surrendered for adoption, the child can be free for adoption once the formalities are fulfilled and it should done by 3 members of the committee where the child had been surrendered,
• Adoption Regulations of 2017 had been used for processing the adoption of the child to a childless couple.

Observation by The Court

• A woman should not have to feel the need of a man to support her. The fact that the woman felt the need to give up her child due to the absence of the man is a failure of the system.
• Even though the state claims to have a 100 per cent literacy rate but the attitude of the society towards the women is pitiable and specifically for unmarried mothers.
• The society rather than being a support for the woman forces her to believe herself to be unfortunate and challenges her emotionally to guilt.
• The right to the body of the woman is hers alone and her womb is her ‘precious possession’ which no other person has a right to claim.
• It is high time that proper legislations are enacted to ensure the woman has respect in herself. She must have backing by law to support her and her identity.

Status of Live-in couple

• The provision for adoption by a married couple states execution of adoption deed by both parents and in case of one parent surrendering, when the child is put for adoption, the whereabouts of the father is unknown, the child is considered to be abandoned.
• The provision was to restore and protect the child.
• In case of a live-in couple, the restoration rights would still apply.
• The rights of the parents are not bound by the institutionalization of marriage.
• The procedure for unwed mother was followed and not of a couple, and in this case a child born from couple in live-in can be considered as one from marriage.

Decree

• The process of adoption was considered illegal and gave no rights to the adoptive parents.
• The restoration of the child to her biological parents was to be done.

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