‘Neither orphan nor abandoned’: Calcutta High Court returns child to adoptive parents

“There is no dispute that biological parents have given the child in adoption to the present petitioners without following the proper procedure. Admittedly, the child is neither ‘orphan’ nor ‘abandoned’. The petitioners have accepted the child and decided to take care of the child by obtaining custody of the child from the biological parents”, the September 17 order read.

The high court further observed that “as per the Hindu Adoption and Maintenance Act, 1956, merely by executing the notarised Adoption Deed, the petitioners cannot claim that they have the right to hold the custody of the child. On the other hand, the Child Welfare Committee does not get any power to deal with the child who is neither ‘abandoned’ nor ‘orphan’. The child involved in the present case also does not fall in the category of ‘children in need of care and protection’”.

Justice Krishna Rao observed that biological parents had given the child in adoption to the adoptive parents without following the proper procedure.

The adoptive parents contended that the minor boy was born on February 24, 2023. It came on record that the child was born prematurely and was admitted to the Special Newborn Care Unit immediately after his birth. On March 21, the child was discharged from the hospital.

The adoptive parents stated that since the biological parents of the child were unable to look after him, they voluntarily handed over the child to the adoptive parents on the day of discharge itself. On April 3, 2023, an adoption deed was signed by both sets of parents, and the boy has since been in the “care and custody” of the adoptive parents, who have been looking after him as their own child.

Subsequently, for admitting the child to school, the adoptive parents reached out to the hospital where he was born to obtain a birth certificate. The hospital authorities directed them to approach the Child Welfare Committee for adoption of the child, after which they could get the birth certificate. According to the adoptive parents, on February 18, 2026, when the parents went to the CWC and informed them about everything, the CWC took the child in their custody. Since then, the Child has remained with the CWC.

‘No legal recognition’

Advocate Shamik Chatterjee, appearing for the adoptive parents, argued that within a week from the birth of the child, “the child is in care and custody of the petitioners (adoptive parents) and there is no allegation against the petitioners that the child was abused, neglected, exploited, trafficked, mistreated and abandoned or subjected to physical, emotional or committed any psychological harm to the child”.

The counsel contended that the adoptive parents had gone to the CWC to complete the formalities so that they could provide proper education to the child but instead of guiding them, the CWC took the child in custody, and no steps were taken to complete the adoption process. The counsel urged that “irregularity in the adoption process does not by itself establish that the child is unsafe or his removal from the established caregiving environment was necessary”.

Advocate Swagata Datta representing the state, argued that under the Juvenile Justice Act, 2015 and adoption regulations, every adoption of a child is required to be completed strictly as per the legal procedure. The counsel contended that the adoption can only be processed through a recognised specialised adoption agency after declaration of the child as legally free for adoption by CWC. A private arrangement or notarised deed executed outside the statutory framework has no legal recognition.

‘Neither orphan nor abandoned’

The high court noted that though the adoption deed signed by the parents was not registered, it was notarised and that “for the ends of justice, it would be appropriate to direct the Child Welfare Committee to return the child to the petitioners”.

The court further flagged that since “the child is neither ‘orphan’ nor ‘abandoned’ and does not fall in the category of ‘children in need of care and protection’”, the action of the CWC taking the custody of the child from the adoptive parents was not in accordance with law. The high court then directed the Child Welfare Committee to hand over the custody of the child to the adoptive parents on or before September 18 at 4 pm.

Considering the welfare of the child, the high court further stated that “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 (adoptive parents) on a quarterly basis starting from the month of December 2026 onwards”.