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

"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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