Child with biological parent alive, not an orphan: Bombay HC

A minor child whose biological parent is alive, won’t be declared as an ‘orphan’, the Bombay High Court said.

A Child Care Home had filed an application seeking two girls to be declared orphans, to which the Bombay High Court gave its disapproval and rejected the application.

The Bench of Justices S V Gangapurwala and R N Laddha were hearing a petition filed by ‘The Nest India Foundation’, a Child Care Home. In the petition, the organisation appealed to the state authorities to issue orphan certificates to two girls and to consider the two in the one per cent horizontal reservation quota in the counselling and admission process of undergraduate courses and colleges.

The advocate representing the organisation, Abhinav Chandrachud said that the two girls have been staying at the organisation since they were four and five years old. He added that as the mothers of these girls are alive, they still can be declared as ‘orphans’ as per the Juvenile Justice (Care and Protection of Children) Act.

Chandrachud mentioned that a reservation is provided for courses under the University of Health Sciences for an orphan. Further, he also mentioned that even if it is assumed that these girls are technically not ‘orphans’, they can still be declared as 'abandoned children' as their mothers have hardly visited them during all these years. “If technically the girls cannot be considered as an 'orphan', however, they could be termed as 'abandoned children'. The law would not make a distinction between an 'abandoned child' and an 'orphan' since both are governed by the same Act," the advocate said.

Furthermore, the Government pleader Purnima Kantharia opposed the request stating that the organisation is not registered and is unauthorised.  “It is illegally running a Child Care Home. Many times, notices were issued to the organisation for the same... The girls cannot be described as ' orphans' as their biological mothers are alive. The organisation also does not possess a declaration that these girls are abandoned,” Kantharia said.

The Bench agreed with Kantharia. The court then stated that as per the JJ Act, a child should be considered as an ‘abandoned child’ only if the child is neglected and deserted by his/her biological or adoptive parents/ guardian. Further, a child can only be declared abandoned after a thorough inquiry by a competent authority who will be taking a firm decision.

Thus, the authority has been asked by the court to take the decision by November 14, 2022, in regard to the two girls from the child care home before they are declared abandoned.