The Calcutta High Court has directed the Child Welfare Committee (CWC) to return custody of a three-year-old child to a couple who had been caring for him since shortly after his birth, holding that the child was neither “orphan” nor “abandoned” and did not fall within the statutory category of “children in need of care and protection” under the Juvenile Justice (Care and Protection of Children) Act, 2015.

Justice Krishna Rao was hearing a writ petition filed by Aparna Das and another, who had challenged the CWC's decision to take custody of the child after the petitioners approached the Committee to complete formalities relating to his adoption.

The child, Amit Das, was born prematurely at M.R. Bangur Hospital, Kolkata, on February 24, 2023. According to the Court, he was born at approximately 29 weeks of gestation with a birth weight of around 1.68 kilograms and remained admitted in the Special New Born Care Unit for about 25 days.

The biological parents voluntarily handed over the child to the petitioners on the day of his birth. An adoption deed was subsequently executed between the biological parents and the petitioners. The deed was notarised but not registered.

The petitioners had been caring for the child since his birth. However, when they approached the hospital authorities for obtaining his birth certificate with a view to admitting him to school, they were directed to approach the Child Welfare Committee regarding the adoption.

The petitioners approached the CWC on February 18, 2026, following which the Committee took custody of the child. The child was not returned to the petitioners despite their subsequent requests.

The petitioners argued that there was no allegation that they had abused, neglected, exploited, trafficked, mistreated or abandoned the child, or caused him physical or psychological harm. They contended that although the adoption procedure had not been properly followed, this by itself did not establish that the child was unsafe or that his removal from the established caregiving environment was necessary.

The State, on the other hand, submitted that adoptions covered by the Juvenile Justice Act and the Adoption Regulations, 2022, had to strictly follow the statutory procedure. It argued that a private arrangement or notarised adoption deed executed outside the statutory framework could not confer legal recognition on the adoption.

The State also submitted that there had been no declaration that the child was legally free for adoption, nor had the prescribed processes such as registration through CARINGS, a Home Study Report, matching or a judicial adoption order been completed.

Justice Krishna Rao agreed that the statutory adoption procedure had not been followed and that merely executing a notarised adoption deed did not give the petitioners a legal right to claim custody of the child.

However, the Court also found that the CWC itself could not assume custody merely because the adoption procedure had not been followed.

“There is no dispute that biological parents have given the child in adoption to the present petitioners without following the proper procedure,” the Court observed.

The Court noted that the child was neither “abandoned” nor “orphan”, as the biological parents had voluntarily given him to the petitioners and the petitioners had accepted him and cared for him since birth.

Importantly, the Court held that the child did not fall within the statutory definition of a “child in need of care and protection” under Section 2(14) of the Juvenile Justice Act.

“The child involved in the present case also does not fall in the category of 'children in need of care and protection',” the Court held.

The Court further held that while the petitioners could not rely upon the defective adoption deed to establish a legal right to custody, the CWC likewise did not acquire jurisdiction to deal with the child when he did not fall within the statutory category of children requiring care and protection.

“On the other hand, the Child Welfare Committee does not get any power to deal with the child who is neither 'abandoned' nor 'orphan',” Justice Rao observed.

The Court relied on the general principles under Section 3 of the Juvenile Justice Act, including the principles of the best interest of the child, family responsibility, safety, positive measures, institutionalisation as a measure of last resort, and repatriation and restoration.

“For the ends of justice, it would be appropriate to direct the Child Welfare Committee to return of child to the petitioners,” the Court said.

It accordingly directed the CWC to hand over custody of the child to the petitioners on or before September 18, 2026, at 4 PM.

At the same time, the Court put in place safeguards concerning the child's welfare. It directed the Member Secretary of the District Legal Services Committee, South 24 Parganas, to obtain quarterly reports regarding the welfare and progress of the child from the petitioners starting December 2026.

The Member Secretary was also given liberty to depute a Child Welfare Expert to inspect the petitioners' residence to assess the child's welfare and progress.

The Court made it clear that its direction to return custody did not validate the adoption itself. Since the proper statutory procedure had not been followed, the petitioners were directed to approach the appropriate court for a declaration that they were the adoptive parents of the child and that the child was their adoptive child.

The writ petition was accordingly disposed of with these directions.

Case: Smt. Aparna Das & Anr. v. The State of West Bengal & Ors.

Case No.: WPA No. 13525 of 2026

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