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Child Not or , Calcutta HC Orders CWC to Return 3-Year-Old to Couple
In a significant ruling prioritizing the welfare and stability of a young child, the
has directed the
to return custody of a three-year-old boy to the couple who had been caring for him since his birth. Justice Krishna Rao held that the child was neither an
nor
and did not fall within the statutory definition of a
"
"
under the
, thereby rendering the CWC's assumption of custody unlawful.
A Three-Year Bond Interrupted
The case concerns a child born prematurely on , at M.R. Bangur Hospital, Kolkata. With a birth weight of just 1.68 kilograms, he spent 25 days in the Special New Born Care Unit. Unable to care for the child, his biological parents voluntarily handed him over to the petitioners, Aparna Das and her spouse, on the day of his discharge. A was executed on , and the child remained in the couple's care for three years.
The trouble began when the couple approached the hospital for the child's birth certificate to enroll him in school. Hospital authorities directed them to the Child Welfare Committee to complete . On , the petitioners approached the CWC, which instead of guiding them, took the child into its custody and refused to return him. This prompted the couple to approach the High Court.
Arguments: Procedure vs. Welfare
The petitioners, represented by
, argued that the child had thrived in their care without any allegation of abuse, neglect, or harm. They contended that the CWC should have facilitated the adoption process rather than mechanically removing the child from a settled caregiving environment.
"Irregularity in adoption process does not by itself establish that the child is unsafe or his removal from established care giving environment was necessary,"
they submitted.
The State, through , countered that the adoption was invalid as it bypassed the mandatory procedure under the Juvenile Justice Act and the . No , registration through , , or had been obtained. The State argued that the CWC acted within its statutory duty to protect children in need of care.
Court Finds CWC Overstepped Its Bounds
Justice Krishna Rao agreed that the adoption procedure had not been followed and that a notarized deed did not confer legal custody. However, the Court focused on whether the CWC had jurisdiction to take custody in the first place. Examining Section 2(14) of the Act, which defines a
"
,"
the Court noted the child was neither orphaned nor
. The biological parents had voluntarily given the child, and the petitioners had accepted and cared for him.
"The child involved in the present case also does not fall in the category of 'children in need of care and protection',"
the Court observed, adding that the CWC
"does not get any power to deal with the child who is neither '
' nor '
'."
Applying the general principles under Section 3 of the Act—including the
,
,
, and
—the Court found that returning the child to the couple was the most welfare-oriented decision.
"For the
, it would be appropriate to direct the Child Welfare Committee to return of child to the petitioners,"
it held.
Safeguards for the Future
While ordering the CWC to hand over custody by , at 4:00 PM, the Court imposed safeguards. The Member Secretary of the , South 24 Parganas, must obtain quarterly reports on the child's welfare starting and may depute a child welfare expert to inspect the petitioners' home.
The Court also made clear that the adoption itself remains invalid. The petitioners were directed to approach the appropriate court for a formal declaration that they are the child's adoptive parents.
A Path to Legal Adoption
This judgment underscores a critical distinction in child protection law: the CWC's powers are not unbounded. Even when statutory procedures are bypassed, the committee cannot assume custody of a child who does not meet the legal definition of being in need of care and protection. The ruling reinforces that the child's best interest and the principle of must guide all decisions.
For the couple, it means the immediate return of the child they have raised since infancy. But the road to legal parenthood remains—they must now seek a court declaration to formalize the adoption in accordance with law.
