- The High Court of Bombay upheld that children brought up in an orphanage cannot be declared orphans s under Section 2(42) of the Juvenile Justice Care and Act, 2015 if their biological parents are still alive.
- The bench comprising Justices S.V. Gangapurwala and R.N. Laddha directed the Committee under the Juvenile Justice Act to decide whether children brought up in an orphanage can be declared as abandoned children under Section 2(1) of the Act.
- The application was filed by The Nest India Foundation which ran a childcare home. They sought directions from the court for an expeditious decision on their application to declare two girls as orphans.
- The application was to seek a provisional orphan certificate in the interim and consideration of the girls in the 1% horizontal reservation quota during counseling and admission for undergraduate courses in health sciences
- Advocate Abhinav Chandrachud, arguing on behalf of the petitioners submitted that the biological parents of the girls are alive and the girls have been nursed in the childcare home since they were 4 and 5 years old.
- Their mothers hardly paid any visits. Hence, they could be declared as abandoned children if not orphans to be eligible to avail of the benefit under the reserved category.
- The opposition, Government pleader Poornima Kantharia pleaded relief.
- She contended that despite the continuous notices to the orphanages against running the center, it did and therefore the two girls cannot be termed as abandoned children.
- There is any requisite declaration to prove that the girls were abandoned.
- The girls are not technically orphans since their biological mothers are alive.
- The court observed that the girls have been nurtured and living at the child carecenter since 2008.
- They cannot be declared orphans and a Competent Committee is only authorized to make such declaration.
- Under the 2015 Act, a child must be deserted by the biological or adoptive parents or guardian to be an abandoned child subject to declaration by the Committee post inquiry.
- Absence of a declaration by a Competent Committee, the girls cannot be referred to as abandoned children.
- The petitioner’s pleas for a provisional orphan certificate were rejected.
- The parties were granted liberty to approach the competent authority on 28 October, 2022 and the committee is to decide the application before 14 November, 2022.
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