Calcutta High Court directs CWC to return a 3-year-old child, holding he was neither orphan nor abandoned under the JJ Act.
The Calcutta High Court has directed the Child Welfare Committee (CWC) to return custody of a three-year-old child to the couple who had been caring for him since shortly after his birth, holding that the child was neither “orphan” nor “abandoned” and did not fall within the statutory category of a “child in need of care and protection” under the Juvenile Justice (Care and Protection of Children) Act, 2015.
Justice Krishna Rao passed the order on September 17, 2026, in Smt. Aparna Das & Anr. v. The State of West Bengal & Ors., WPA No. 13525 of 2026.
Child Had Remained With Couple Since Infancy
The child was born prematurely on February 24, 2023, at M.R. Bangur Hospital, Kolkata. According to the material before the Court, he was born at approximately 29 weeks of gestation, weighed around 1.68 kilograms and remained admitted to the Special Newborn Care Unit for about 25 days.
The biological parents subsequently handed over the child to the petitioners, who continued to care for him. An adoption deed was later executed between the biological parents and the petitioners. Although the document was notarised, it was not registered and the statutory adoption procedure had not been completed.
The dispute arose when the couple sought the child’s birth certificate for the purpose of his admission to school. They were advised to approach the CWC concerning the adoption formalities.
The couple approached the Committee on February 18, 2026. However, instead of merely facilitating the required legal process, the CWC took custody of the child. The petitioners thereafter approached the High Court seeking restoration of custody.
State Highlighted Irregularities In Adoption Process
Before the High Court, the State contended that the adoption had not been completed in accordance with the Juvenile Justice Act and the Adoption Regulations, 2022.
It was argued that a private arrangement or notarised adoption deed could not substitute the statutory adoption process. The State also pointed out that the child had not been declared legally free for adoption and that the prescribed procedures relating to adoption had not been completed.
The High Court accepted that the proper adoption procedure had not been followed. It made it clear that the notarised adoption deed, by itself, did not confer a legal right upon the petitioners to claim custody or establish their status as the child’s adoptive parents.
However, the Court drew an important distinction between the validity of the adoption process and the CWC’s statutory authority to take custody of the child.
CWC Could Not Assume Custody Merely Because Adoption Procedure Was Defective
Justice Krishna Rao observed that the biological parents had voluntarily handed over the child to the petitioners and that the child had remained in their care since infancy.
The Court therefore held that the child was neither “orphan” nor “abandoned”. It further found that he did not fall within the definition of a “child in need of care and protection” under Section 2(14) of the Juvenile Justice Act.
The Court observed that while the petitioners could not rely upon the defective adoption deed to claim a legal right to custody, the CWC also could not exercise jurisdiction over a child who did not fall within the statutory category of children requiring its intervention.
Thus, the Court held that the CWC’s decision to take custody of the child was not in accordance with law.
Best Interest Of Child Central To Custody Direction
The High Court also considered the principles contained in Section 3 of the Juvenile Justice Act, including the child’s best interest, family responsibility, safety, positive measures, institutionalisation as a measure of last resort, and repatriation and restoration.
Considering these principles and the child’s established caregiving environment, the Court directed the CWC to return the child to the petitioners. The Committee was directed to hand over custody by 4 PM on September 18, 2026.
The Court, however, did not treat the direction as a declaration that the adoption itself was legally valid.
Welfare Monitoring Ordered
To safeguard the child’s welfare, the Member Secretary of the District Legal Services Committee, South 24 Parganas, was directed to obtain quarterly reports concerning the child’s welfare and progress from the petitioners, beginning December 2026.
The Member Secretary was also given liberty to arrange an inspection of the petitioners’ residence through a Child Welfare Expert, if considered necessary.
The petitioners were further directed to approach the appropriate court for a declaration regarding their status as the child’s adoptive parents and the child’s corresponding legal status.
The ruling therefore draws a clear line between irregular adoption procedure and CWC jurisdiction. While statutory adoption requirements cannot be bypassed through a private or notarised arrangement, the absence of procedural compliance does not, by itself, place every child within the CWC’s statutory custody jurisdiction.
The decision underscores that proceedings concerning children must remain anchored in the statutory framework as well as the child’s welfare, family environment and best interests. Readers can follow further developments through [The Legal Observer’s national news coverage] and its [legal news section].
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