CWC Cannot Seize Custody of Children Who Are Not Orphaned or Abandoned: Calcutta HC

The Calcutta High Court has curtailed the overreaching powers of Child Welfare Committees, ruling that the state cannot arbitrarily strip adoptive parents of custody if a child does not fall under the statutory definition of being 'in need of care and protection'. This decision reinforces the principle that procedural irregularities in private adoption do not grant the state a carte blanche to disrupt a settled, loving environment in favor of institutionalization.

In a significant intervention for child rights, a bench of Justice Krishna Rao heard a writ petition filed by a couple who had raised a child from infancy based on a notarized adoption deed, only to have the child seized by the Child Welfare Committee when they sought a birth certificate. The Court examined whether the Committee's action of taking custody was legally sustainable under the prevailing juvenile justice framework.

Key Takeaways

Limits on CWC Authority

Statutory bodies under the Juvenile Justice (Care and Protection of Children) Act, 2015 can only exercise jurisdiction over children who are strictly defined as being in need of care and protection, such as those abandoned or orphaned.

Welfare Over Procedure

Administrative or procedural lapses in the adoption process cannot be used to mechanically sever the emotional bond between a child and their long-term caregivers.

Institutionalization as Last Resort

Restoring a child to a family environment is the primary objective of the law; institutional care must only be a step of last resort after exhaustive inquiry.

Legal Recourse for De Facto Parents

Caregivers in irregular adoptions must seek formal declarations from competent courts to solidify their status as adoptive parents rather than facing summary removal by child welfare agencies.

Court Rebukes Mechanistic Custody Seizure

The Court noted that while the petitioners did not follow the rigorous procedures mandated by the Central Adoption Resource Authority (CARA) or the Adoption Regulations, 2022, the child was neither an orphan nor abandoned. The biological parents had voluntarily handed over the child at birth via a notarized deed. The Court found that the Child Welfare Committee acted beyond its jurisdiction because the child did not meet the criteria under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015.

The Court, in its reasoning, observed: "As the child is neither 'orphan' nor 'abandoned' and does not fall in the category of 'children in need of care and protection' in terms of Section 2(14) of the Act of 2015, the action of the Child Welfare Committee taking the custody of the child from the petitioners is not is accordance with law."

The Court has following directions:

"The Child Welfare Committee is directed to hand over the custody of the child to the petitioners on or before 18th September, 2026 at 04:00 P.M. As an abandon caution and for the best interest of the Child, the Member Secretary of the District Legal Services Committee, South 24 Parganas, Kolkata, West Bengal, is directed to seek reports on the welfare and progress of the child from the petitioners on a quarterly basis starting from the month of December, 2026 onwards. The Member Secretary of the District Legal Services Committee will also be at liberty to depute a Child Welfare Expert to inspect the house of the petitioners where the child resides to see the welfare and progress of the child. The petitioners are directed to take appropriate steps before the appropriate Court of law for declaration that the petitioners are the adoptive parents of the child and the child is the adoptive child of the petitioners."

Ratio

A Child Welfare Committee lacks the statutory power to assume custody of a child who is neither orphaned nor abandoned, as such a child does not qualify as being 'in need of care and protection' under Section 2(14) of the Juvenile Justice (Care and Protection of Children) Act, 2015. The welfare of the child and the principle of family responsibility mandate that a settled caregiving environment should not be disturbed solely due to procedural irregularities in the adoption process.

Background

The case arose when a child born prematurely in 2023 was handed over by his biological parents to the petitioners due to their inability to care for him. A notarized 'Deed of Adoption' was executed. For three years, the child remained with the petitioners. When the petitioners approached the hospital for a birth certificate to enroll the child in school, they were directed to the Child Welfare Committee. However, instead of facilitating the process, the Committee took the child into its custody, citing a lack of statutory adoption registration under CARA.

The petitioners argued that the child was safe and loved, and that the Juvenile Justice (Care and Protection of Children) Act, 2015 was intended to protect vulnerable children, not to penalize bona fide caregivers. The State contended that under the Adoption Regulations, 2022, private arrangements have no legal recognition. The Court ultimately held that while the adoption was not strictly legal, the Committee’s summary removal was an even greater violation of the child's best interests and the general principles of Juvenile Justice (Care and Protection of Children) Act, 2015.

Case Details:
Case No.: W.P.A. No. 13525 of 2026
Case Title: Smt. Aparna Das & Anr. Vs. The State of West Bengal & Ors.
Appearances:
For the Petitioner(s): Mr. Shamik Chatterjee, Mr. Souma Subhra Roy, Ms. Swagata Santra, Ms. Neelam Kumari, Advocates
For the Respondent(s): Ms. Swagata Datta, Ms. Ankita Dey, for the State; Mr. Sudipto Basu, Ms. Susmita Saha, for Respondent nos. 7 and 8.

Source: 2026 CaseBase(CAL) 2577