Calcutta HC Slams CWC for 'Bad & Illegal' Declaration of Child as 'Abandoned' Despite DNA Proof; Quashes Adoption Order, Mandates Fresh Inquiry With Biological Parents' Hearing

"CWC has not followed the procedure in accordance with the Act of 2015 and have also not provided any opportunity of hearing to the petitioner before declaring the child as abandoned, declaring the parents as incapacitated and the child free for legal adoption." Calcutta High Court, in a scathing ruling, unequivocally quashed a Child Welfare Committee (CWC) decision that declared a child 'abandoned' and 'legally free for adoption'. The Court found the CWC acted illegally and without due process under the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act, 2015), especially when biological parents had come forward and DNA evidence confirmed parentage.

A single bench of Justice Krishna Rao underscored the CWC's failure to conduct proper inquiry and provide an opportunity of hearing to the biological mother.

The matter originated from the discovery of a newborn infant in a drain with grievous injuries on March 23, 2024. Local people and one Ritam Das, claiming to be the biological father, rescued the child and took him to the police station and then to R.G. Kar Medical College and Hospital. Subsequently, the petitioner, Asmita Poddar, also reached the hospital, claiming to be the biological mother.

Due to the dispute and the child's condition, the CWC, Kolkata, took charge of the child and placed him with a Specialized Adoption Agency (SAA). The petitioner then approached the High Court seeking the child's return, leading to a direction that the CWC decide the prayer for return in accordance with law, after DNA results were available.

The primary question before the court was whether the CWC's impugned order dated November 18, 2024, declaring the child's parents incapacitated and directing the SAA to proceed for Legally Free For Adoption (LFA), was sustainable under law. The court also examined if the CWC had followed the due process mandated by the JJ Act, 2015.

CWC's Declaration of 'Abandoned Child' Without Inquiry is Illegal

The High Court meticulously analyzed the CWC's order, noting that the CWC had declared the child 'abandoned' under Section 2(1) of the JJ Act, 2015. However, the Court highlighted that this section mandates a "due inquiry" to establish if a child is abandoned.

The Court observed that from the very beginning, the petitioner and Ritam Das were claiming to be the biological parents, and their names were recorded in hospital admission documents. Despite this, the CWC proceeded to declare the child abandoned without a proper inquiry or engaging with the claimants.

DNA Confirmation Ignored by CWC

Crucially, the Court noted that a DNA test, conducted at the CWC's request, had confirmed the petitioner and Ritam Das as the biological mother and father. This critical evidence, establishing parentage, was not adequately considered by the CWC in its decision.

No Opportunity of Hearing for Biological Parents

The Court found that the CWC had declared the biological parents "incapacitated" without issuing any notice or providing them an opportunity to be heard. This violated fundamental principles of natural justice and due process.

Police Report Exonerating Mother Disregarded

The CWC Chairperson had lodged a complaint with the police, leading to an FIR under Section 308/34 IPC against the mother and others. However, the police investigation concluded that the petitioner (biological mother) was not involved in committing any offence, attributing the act of abandoning the child to her deceased mother. The CWC failed to consider this police report.

"The second proviso of Section 38 provides that notwithstanding anything contained in this regard in any other law for the time being in force, no first information report shall be registered against any biological parent in the process of inquiry relating to an abandoned or surrendered child under this Act."

CWC's Actions Contravened JJ Act Section 38 Proviso

The Court pointed out that Section 38 of the JJ Act, 2015, which outlines the procedure for declaring a child legally free for adoption, explicitly states in its second proviso that "no first information report shall be registered against any biological parent in the process of inquiry relating to an abandoned or surrendered child under this Act." The CWC's act of initiating an FIR against the biological mother, instead of conducting an inquiry, directly violated this statutory mandate.

Misinterpretation of Prior High Court Order

The CWC selectively relied on a previous High Court order that stated "proof of maternity alone in this case, would not entitle the mother to take back the child." However, it failed to acknowledge another crucial part of the same order directing the CWC to "decide the prayer for return of child in accordance with law, at the appropriate stage," which implicitly required a proper inquiry and hearing.

Absence of Social Investigation Report

The Court further noted the CWC's failure to obtain a social investigation report, as required under Section 36(2) of the JJ Act, 2015. Such a report is essential for assessing the physical and mental health of parents, their economic conditions, and other factors relevant to child welfare.

Welfare of the Child Cannot Override Due Process

While acknowledging that the welfare of the child is paramount, the Court emphasized that this principle does not allow authorities to bypass statutory procedures and natural justice. The CWC's decision was made in a "casual manner" without due inquiry or affording the biological parents an opportunity to justify their claim.

Considering the grave procedural lapses, the Calcutta High Court set aside and quashed the Child Welfare Committee's decision dated November 18, 2024, and all subsequent actions related to the child's custody based on that order. The Court directed the adoptive parents to surrender the child to the CWC, Kolkata, by August 7, 2026. The CWC, Kolkata, was then ordered to place the child with the SAA until a fresh inquiry is completed. The CWC is mandated to conduct a fresh inquiry in accordance with law, providing an opportunity of hearing to the biological parents and considering the police report, within a period of four weeks from the date of receipt of the order. The High Court refused the CWC's prayer for a stay of the judgment.

This judgment by the Calcutta High Court serves as a critical reminder to Child Welfare Committees nationwide about the indispensable requirement of adhering strictly to the procedural safeguards and inquiry mechanisms laid down in the Juvenile Justice (Care and Protection of Children) Act, 2015. It reinforces that even in sensitive cases involving child abandonment, the fundamental rights of biological parents, especially the right to be heard and the right to due process, cannot be overlooked, and DNA evidence and police investigations must be given due weight.

Date of Decision: 06 August 2026