The Calcutta High Court has set aside a Child Welfare Committee (CWC) order declaring the biological parents of a child “incapacitated” to take custody and directing that the child be declared legally free for adoption, holding that the Committee had failed to conduct the mandatory inquiry under the Juvenile Justice (Care and Protection of Children) Act, 2015.

Justice Krishna Rao directed the adoptive parents to surrender the child to the CWC, Kolkata, and ordered the Committee to conduct a fresh inquiry after providing an opportunity of hearing to the biological parents.

The Court also directed the CWC to obtain a report from the investigating agency and complete the fresh inquiry within four weeks.

The case arose after a newborn baby was found on March 23, 2024, lying in a narrow lane near a drain with multiple injuries. Local residents rescued the child and took him to the police station, from where he was shifted to R.G. Kar Medical College and Hospital.

A man, Ritam Das, claimed to be the biological father of the child and accompanied the locals in taking the infant to the police station and hospital. The petitioner, Asmita Poddar, subsequently reached the hospital and claimed to be the child's biological mother.

The matter was thereafter placed before the CWC, which took custody of the child and placed him with a Specialized Adoption Agency.

Poddar approached the High Court seeking return of the child. During the proceedings, the CWC directed that DNA testing be conducted. The test subsequently established that Poddar and Ritam Das were the biological mother and father of the child.

The Court noted that the police investigation ultimately found that Poddar herself had not committed any offence. According to the investigation report, the child's maternal grandmother, Lakshmi Poddar, had dropped the newborn in the narrow lane in the absence of Poddar, allegedly due to objections to Poddar's relationship and marriage with Ritam Das.

Lakshmi Poddar died during the investigation, following which the police submitted a final report seeking closure of the case against her and discharging Asmita Poddar.

Despite the DNA report establishing the parentage, the CWC passed an order on November 18, 2024, declaring the child abandoned and the biological parents “incapacitated” to take him back.

The Committee directed the Specialized Adoption Agency to proceed with the legally free for adoption process.

The High Court found fault with the procedure adopted by the CWC.

It noted that the Committee had not produced any material demonstrating that an inquiry had actually been conducted before declaring the child abandoned.

The Court observed that although newspaper notices inviting claims and objections had been published, neither the petitioner nor Ritam Das had been issued individual notice or given an opportunity to establish their claim.

“The CWC has not produced any record to say that the committee has conducted inquiry,” the Court observed.

The Court further noted that the DNA test had been conducted at the instance of the CWC itself and that the Committee was aware of the result establishing the petitioner and Ritam Das as the biological parents.

The Court held that the Committee had also failed to establish the basis on which it concluded that the biological parents were incapacitated.

Referring to Section 2(14)(v) of the JJ Act, the Court noted that a child can be considered to be in need of care and protection where a parent or guardian is found to be unfit or incapacitated to care for and protect the child's safety and well-being.

However, the CWC had not examined the parents or obtained any social investigation report before reaching that conclusion.

The Court said that relevant factors such as the physical and mental health of the parents, substance abuse or addiction, history of neglect or abuse, living environment, financial stability and criminal record were required to be examined.

It observed that the CWC had proceeded merely on the basis that the child was found injured near a drain.

“The Committee has passed the impugned order only on the basis that the child was found from drain with several injuries,” the Court said.

The Court also noted that the police investigation had produced a different account of the incident, attributing the act of leaving the child in the lane to the petitioner's deceased mother and not to the petitioner.

The High Court further held that the CWC had failed to comply with Section 38 of the JJ Act, which governs the procedure for declaring an orphan or abandoned child legally free for adoption.

The provision requires the Committee to make all efforts to trace the parents or guardians and, only after completing the requisite inquiry, determine whether the child is an orphan or abandoned.

In the present case, the Court noted, the petitioner had been claiming the child as her own from the very beginning and had approached the police, hospital authorities, the CWC and the High Court.

“Since beginning the petitioner as well as Ritam Das is claiming to be the biological parents,” the Court noted.

The Court also highlighted the second proviso to Section 38, which provides that no FIR shall be registered against a biological parent during the process of inquiry relating to an abandoned or surrendered child under the Act.

It observed that, instead of conducting the statutory inquiry, the CWC had initiated a criminal case on the basis of its complaint and thereafter proceeded to declare the child abandoned, the parents incapacitated and the child legally free for adoption.

The Court further found that no social investigation report contemplated under Section 36 of the JJ Act had been obtained.

Justice Rao accordingly held that the CWC had failed to follow the procedure prescribed under the 2015 Act and had not afforded the biological parents an opportunity of hearing.

The Court set aside and quashed the CWC's November 18, 2024 decision and all consequential actions concerning the custody of the minor.

The adoptive parents were directed to surrender the child to the CWC, Kolkata, by August 7, 2026. The CWC was directed to immediately place the child in a Specialized Adoption Agency pending completion of the fresh inquiry.

The Committee has been directed to conduct the fresh inquiry in accordance with law, give the biological parents an opportunity of hearing, obtain a report from the investigating agency and pass an appropriate order within four weeks.

The writ petition was accordingly allowed.

The Court also refused to stay its judgment after the CWC sought such a stay.

Case: Asmita Poddar @ Payel Poddar Vs. The State of West Bengal & Ors.

Case No: W.P.A. No. 24620 of 2025

Click here to read order