CWC Has No Power To Deal With A Child Who Is “Neither Abandoned Nor Orphan”: Bombay High Court Orders Return Of Girl To Adoptive Parents
The Bench held invalid adoption deed does not confer jurisdiction on CWC where child does not fall within definition of "child in need of care and protection" under Section 2(14), JJ Act.
The Bombay High Court, Nagpur Bench has held that a Child Welfare Committee cannot assume custody of a child merely because the underlying adoption was not carried out in accordance with law, if the child in question is neither "orphan" nor "abandoned" and therefore does not fall within the statutory definition of child in need of care and protection. The Court allowed a habeas corpus petition filed by adoptive parents and directed the Committee to hand over custody of the minor forthwith.
The Bench clarified that even an unregistered, merely notarized Deed of Adoption, which admittedly does not satisfy the requirements of the Hindu Adoptions and Maintenance Act, 1956 or the CARA framework recognised under the Juvenile Justice (Care and Protection of Children) Act, 2015, does not, by itself, clothe the Committee with jurisdiction to intervene, since its powers under Chapter VI of the 2015 Act extend only to children falling within Section 2(14).
A Division Bench of Justice Urmila Joshi-Phalke and Justice Nivedita P. Mehta observed, “…the custody being handed over to the CWC is not justified. The CWC itself does not get any power to deal with the child who is neither ‘abandoned’ nor ‘orphan’…and does not fall in the category of ‘children in need of care and protection’ as defined under Section 2(14) of the Act of 2015. The action on the part of the CWC obtaining the custody of the child is illegal as the CWC is not competent to exercise the jurisdiction over the said child and thereby the action of the CWC is wrong and illegal”.
Advocate N.R. Rathod appeared for the petitioners and Amit Chutke, Additional Public Prosecutor appeared for the respondent.
However, the Court had also noted, “…admittedly, biological parents, after giving birth to the girl child, decided to give the child in adoption as they were already having two girls and one male child. Petitioners have accepted the child and decided to take care of the child by obtaining custody of the child by adoption. The notarized document is Deed of Adoption. As per the provisions of HAMA, merely by executing the notarized Adoption Deed, petitioners cannot claim that they have right to hold the custody of the girl child...”.
According to the petitioners, a husband and wife from Chandrapur district, had taken custody of a girl child in 2020 through an informal arrangement with the biological parents, who already had two other daughters and a son.
The families executed a Deed of Adoption under the Hindu Adoptions and Maintenance Act, which was notarized but never registered. The child was raised by the petitioners for over five years and enrolled in school.
In May 2026, following a visit by a person identifying himself as an NGO official, the Child Welfare Committee summoned the petitioners, examined the adoption documents, and took the child into custody on the ground that the adoption was illegal, despite briefly restoring custody after declaring the petitioners "fit persons".
The child was subsequently taken away again on June 05, 2026 and not returned despite repeated requests, prompting the petitioners to approach the High Court.
The State opposed the petition, contending that habeas corpus was not maintainable since the Committee's custody was not illegal, given that the Deed of Adoption itself was invalid.
The Court, after examining Sections 2(13) and 2(14) of the JJ Act, held that the Committee's jurisdiction under Chapter VI is confined to children in need of care and protection, and that an irregularly adopted child, where biological parents have consented and are traceable, does not meet this description.
Placing reliance on its earlier decision in Leelendra Deju Shetty v. State of Maharashtra & Ors. Criminal Writ Petition No.2487 of 2024 and other connected matter, and on the Supreme Court's decision in Tejaswini Gaud and ors v. Shekhar Jagdish Prasad Tewari and ors, (2019)7 SCC 4 and Rajiv Bhatia v. State (NCT of Delhi) (1999)8 SCC 52, the Bench held that welfare of the child, rather than technical validity of the adoption, was the paramount consideration, and that the Committee's action in taking custody was without jurisdiction.
The Court allowed the petition, quashed the Committee's orders dated 27th May and 5th June 2026, and directed it to hand over custody of the child to the petitioners forthwith.
Cause Title: P v. Child Welfare Committee & Ors. (Neutral Citation: 2026:BHC-NAG:8156-DB)
Appearances:
Petitioners: N.R. Rathod, Advocate.
Respondent: Amit Chutke, Additional Public Prosecutor.