The Bombay High Court dismissed the IA with the liberty to make a representation to the Competent Authority under the Act, 2015 for the declaration of the girl as an abandoned child. A division bench of this Court comprising Hon’ble Justice S.V. Gangapurwala and R.N. Laddha held that if the biological mother of the children is alive, they cannot be termed as ‘orphaned’ defined under Section 2(42) of the Juvenile Justice (Care and Protection of Children) Act, 2015 ( “the Act, 2015”).
Brief Facts:
The writ petition was filed by a Foundation running a Child Care Home against the show cause notice and the directions issued by the Authority to shift the children from the petitioner's institution to another Child Care Home. The interim protection was granted so far as shifting of the children is concerned by this Court. The IA was filed to seek an Orphan Certificate to Upasana Sharma and Varsha Gaikwad in an expedited manner, so also seeks directions against respondent No.3 to consider Upasana Sharma and Varsha Gaikwad in the 1% horizontal reservation quota in the counseling and admission process of the Under Graduate courses and colleges pending the issuance of Orphan Certificate by respondent Nos.2 and 3.
Contentions of the Petitioner:
The learned Advocate submitted that the mothers of the petitioners are alive, still, the petitioners can be termed as ‘orphans’ within the meaning of Section 2(42) of the Act, 2015. He further submitted that even if it is assumed that these girls cannot be declared as ‘orphans’, still they can be declared as ‘abandoned children’ within the meaning of Section 2(1) of the Act, 2015.
The contention of the Counsel was that law does not make a distinction between ‘abandoned child’ and ‘orphan’ inasmuch as both are governed by the same Act. Therefore, there would not be any reason for not applying the reservation of ‘orphan’ to ‘abandoned child’. The reliance was placed upon the judgment of the Apex Court in State of Rajasthan v. Mukan Chand AIR 1964 SC 1633 and Leelabai Gajanan Pansar v. Oriental Insurance Co. Ltd. (2008) 9 SCC 720.
Contentions of the Respondent:
The learned Government Pleader submitted that the said girls cannot be described as ‘orphans’ as their biological mothers are alive. Also, the petitioner does not possess a declaration that these girls are abandoned.
Observations of the Court:
This Court noticed that there is nothing on record that indicates that the girls are in the petitioner’s Child Care Home since 2008 as stated by them. Further, there was not any declaration a Competent Committee declaring these two girls as ‘abandoned children’. Even, the mothers of these girls are alive and sometimes visit them. Therefore, in view of this Court, unless the declaration from the Competent Committee comes forth, these girls cannot be declared as ‘abandoned children’ merely on the fact that they are living in an orphanage since childhood.
The decision of the Court:
The Bombay High Court declined to grant any relief but gave the liberty to the Petitioner to make a representation in front of the Competent Authority under the Act, 2015 for the declaration of the said girls as an abandoned child.
Case Title: The Nest India Foundation vs State of Maharashtra
Coram: Hon’ble Justice S.V. Gangapurwala and R.N. Laddha
Case no.: IA (L) NO. 30500 OF 2022 IN WRIT PETITION NO. 2164 OF 2022
Advocate for the Petitioner: Dr. Abhinav Chandrachud
Advocate for the Respondent: Smt. P. H. Kantharia
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