Child Raised In Orphanage Cannot Be Declared As "Orphan" Under JJ Act If Biological Parents Are Alive: Bombay High Court

Children though brought up in an orphanage cannot be declared as 'orphans'

as defined under Section 2(42) of the Juvenile Justice Care and Act, 2015 if

their biological parents are alive, the Bombay High Court held.

"X and Y would not be termed as 'orphan' as defined under Section 2(42) of

the Act, 2015 in as much as their biological mothers are alive."

The bench of Justices SV Gangapurwala & RN Laddha however asked the

Committee under the JJ Act to decide if such children, the petitioners, can be

declared as 'abandoned children' under section 2(1) of the Act.

The court was dealing with an application filed by 'The Nest India Foundation'

running a child care home. They sought directions for an expeditious

decision on their application to declare two girls as orphans.

The application sought for a provisional Orphan certificate in the interim and

to consider the girls for 1% horizontal reservation quota in the counselling

and admission process of the Under Graduate courses for health Sciences

Advocate Abhinav Chandrachud for the petitioners submitted that though the

biological parents are alive, the girls have been living in the child care home

since they were 4 and 5. Their mothers had hardly visited the girls. While

there was no bar on declaring them as orphans, they could at least be

declared as abandoned children and be granted benefit under the reserved

category.

"There would not be any reason for not applying the reservation of 'orphan' to

'abandoned child'. It is submitted that the phrase 'orphan' will have to be

given a broader meaning and not a restricted meaning," the court noted

Chandrachud's submissions in its order

Government Pleader Poornima Kantharia opposed relief. Firstly, she said the

orphanage has been handed over notices time and again that it cannot run

the Centre, so the two girls cannot be referred to as abandoned children.

Secondly, the girls cannot be described as 'orphan' as their biological

mothers are alive. Moreover, the petitioners don't even have the requisite

declaration that the girls were abandoned.

The court noted that the girls were living in the child care centre since 2008.

And while they could not be declared as orphans, a Competent Committee

would need to declare them as orphans.

"For a child to be an 'abandoned child' within the meaning of Act, 2015, the

Child should be deserted by his/her biological or adoptive parents or

guardian and is required to be declared as 'abandoned child' by the

Committee after inquiry. Today, we do not have any declaration of a

Competent Committee declaring these two girls as 'abandoned child'."

Owing to the above the bench refused the petitioner's plea for a provisional

orphan certificate. It however granted them liberty to approach the

competent authority by October 28, 2022 and for the committee to decide on

their application by November 14. The matter will be listed the next day.

Case Title: The Nest India Foundation Versus The State of Maharashtra &

Ors.

Citation: 2022 LiveLaw (Bom) 423

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