“Child Cannot Be Declared An Orphan When Biological Mother Is Alive”: Bombay High Court
The High Court, however, allowed the petitioner to approach the competent authority for declaration of the girls as abandoned children.
A Division Bench of the Bombay High Court comprising Justice S.V Gangapurwala and Justice R.N Ladha rejected a plea file by an organization seeking declaration of two girls as orphans. Court said that the girls could not be declared as orphans as their biological mother was alive.
The petition was filed before the High Court seeking a direction to be issued to the state authorities to issue the orphan certificate to the girls and consider their application for 1% horizontal reservation quota in the counseling and admission process for Under Graduate courses pending the issuance of Orphan Certificate.
Advocate Abhinav Chandrachud for the petitioner argued that the mothers of the petitioners were alive, still the petitioners could be termed as ‘orphans’ within the meaning of Section 2(42) of the Juvenile Justice (Care and Protection of Children) Act, 2015. He argued that if they could not be declared orphans then they could be declared as abandoned. He submitted that the law does not make a distinction between ‘abandoned child’ and ‘orphan’ inasmuch as both are governed by the same Act.
Government Pleader Purnima Kantharia opposed the petition and argued that the petitioner institution was not a registered institution and it was illegally running a Child Care Home. She also submitted that the said girls could not be described as ‘orphans’ as their biological mothers were alive and that the petitioner also did not possess a declaration that these girls were abandoned.
The Court agreed with the arguments of the government pleader and said that the girls could not be termed as ‘orphans’ as defined under Section 2(42) of the Act, 2015 as much as their biological mothers were alive.
The court noted that 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 an ‘abandoned child’ by the Committee after inquiry.
The Court allowed the petitioner to approach the competent authority and file an application for a declaration of the girl as an abandoned child.
Case Title: The Nest India Foundation vs State of Maharashtra & Ors