Calcutta High Court (Appellete Side)
Asmita Poddar @ Payel Poddar vs The State Of West Bengal & Ors on 6 August, 2026
IN THE HIGH COURT AT CALCUTTA
(Constitutional Writ Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Krishna Rao
W.P.A. No. 24620 of 2025
With
CAN No. 1 of 2026
Asmita Poddar @ Payel Poddar
Vs.
The State of West Bengal & Ors.
Mr. Moyukh Mukherjee
Ms. Sarmistha Basak
....For the petitioner.
Mr. Dibyendra Narayan Ray, Ld. GP
Mr. Subhankar Chakraborty
Ms. Sayani Gupta
Mr. Atindra Rai
.... For the State.
Mr. Srijib Chakraborty
Mr. Sunny Nandy
Ms. Rupsa Sreemani
....For the Respondent No.2.
2
Mr. Nilotpal Chatterjee
....For the Respondent No.3.
Hearing Concluded On : 29.07.2026
Judgment Delivered On : 06.08.2026
Judgment Uploaded On : 06.08.2026
Krishna Rao, J.:
1. The petitioner has filed the present writ petition praying for setting
aside and quashing of the decision of the Child Welfare Committee
(hereinafter referred to as “CWC”) dated 18th November, 2024, wherein
the CWC has declared the appealed parents as incapacitated to take
the child and directed to the Specialized Adoption Agency (hereinafter
referred to as “SAA”) to proceed for Legally Free For Adoption
(hereinafter referred to as “LFA”) as the child RIBHU has already been
declared as abandoned child by the CWC, Kolkata.
2. On 23rd March, 2024, a new born infant was found in a drain with
grievously injured condition and the local people rescued the said new
born baby and taken to local police station. One person, namely, Ritam
Das was also with the local people and was claiming to be the biological
father of the said new born baby. The police immediately take the said
child to R.G. Kar Medical College and Hospital. During treatment of the
child at the hospital, the petitioner also reached to the hospital and
claimed herself to be the biological mother of the new born male child.
She informed to the police that she got married with Shri Ritam Das
3
without the consent of their respective families and out of their
wedlock, she gave birth to the male child at her residence.
3. As there was dispute with regard to the biological parents of the new
born child, the matter was reported to the CWC, Kolkata and upon
discharge of the child from the hospital, the CWC took the charge of the
child and handed over to SAA for taking care of the said child. The
petitioner has made representation to the Officer-in-charge, Manicktala
Police Station to hand over the child to the petitioner being the
biological mother. The petitioner has also made representation to the
hospital authorities for recording her name as mother and name of
Ritam Das as father of the minor child in the official record so as to
enable her to approach the authority to take back the child.
4. The petitioner could not get any remedy from the authorities, the
petitioner has filed a writ petition before this Court being WPA No.
12471 of 2024 praying for a direction upon the respondent authorities
to return the child to the petitioner. This Court by an order dated 3rd
July, 2024, disposed of the writ petition by directing that the CWC will
decide the prayer for return of the child in accordance with law, at the
appropriate stage.
5. During the pendency of the case, the Chairperson of the CWC, Kolkata,
lodged a complaint to the police against the petitioner and on receipt of
the complaint, the Police has registered a case being FIR No. 83 of 2024
dated 13th June, 2024, under Section 308/34 of the IPC. As per the
4
request of CWC dated 9th June, 2024, the police have conducted DNA
test of the child, the petitioner and her husband, namely, Ritam Das.
The police have received DNA report and finds that the petitioner and
Ritam Das are the biological mother and father of the child.
6. Mr. Moyukh Mukherjee, Learned Advocate representing the petitioner
submits that inspite of direction passed by this Court, no opportunity
of hearing was provided to the petitioner by the CWC and in the
meantime, the police has also filed final report wherein it is recorded
that the case has been established against Smt. Lakshmi Poddar,
mother of the petitioner but she expired on 4th November, 2024 and no
case has been made out against the petitioner.
7. Mr. Mukherjee submits that the petitioner has made several requests to
the CWC and to the concerned authorities with the request to hand
over the child to the petitioner, but none of the authorities have
considered the case of the petitioner. He submits that all of a sudden
on 13th October, 2025, the Assistant Secretary, West Bengal
Commission for Protection of Child Rights informed the Advocate of the
petitioner that on 18th November, 2024, the CWC directed the SAA to
proceed with LFA process in respect of the said child. On receipt of the
said information, the petitioner has filed the present writ petition.
8. Mr. Mukherjee submits that the petitioner since beginning is claiming
the child being the biological mother and the petitioner has filed writ
petition and this Court directed the CWC to decide the prayer of the
5
petitioner for return of child in accordance with law and the CWC had
the knowledge that the petitioner is claiming the child but no
opportunity of hearing was provided to the petitioner and behind the
back and without the knowledge of the petitioner, the CWC passed an
order to give the child in adoption.
9. Mr. Mukherjee submits that immediately when the petitioner came to
know about the impugned decision, the petitioner has filed the present
writ petition and during the pendency of the present writ petition, the
respondents have informed this Court that the child has been given
adoption to the added respondents without considering the request of
the petitioner and without giving any opportunity of hearing to the
petitioner.
10. Mr. Mukherjee submits that the Chairperson had the knowledge that a
criminal case is initiated on her complaint and on her request, a DNA
test was conducted and the Chairperson had the knowledge that the
petitioner is the biological mother of the child but no opportunity of
hearing was provided to the petitioner.
11. Mr. Mukherjee submits that after investigation, the police submitted
final report wherein it is categorically mentioned that the petitioner has
not committed any offence.
12. Mr. Mukherjee submits that after filing report by the respondents in the
present case, the petitioner came to know about the contents of the
decision of the CWC. He submits that in the impugned order dated 18 th
6
November, 2024, it is reordered that an unknown couple appealed
before the Learned Court and claimed themselves as the parent of the
child and the Learned Court ordered for DNA Sample Test and the
report is awaited but the said recording is contrary to the record. He
submits that as per police report, the CWC sent an email to the police
on 9th June, 2024, directing to conduct DNA test and on 19th June,
2024, samples were sent for expert opinion and on 27th June, 2024,
report was received.
13. Mr. Mukherjee submits that in the impugned order, it is also recorded
that the appealed parents are considered as incapacitated by the CWC,
Kolkata but no notice was issued to the petitioner and no opportunity
of hearing was provided to the petitioner and without any materials or
inquiry, the CWC, Kolkata, came to the said conclusion.
14. Mr. Srijib Chakraborty, Learned Advocate representing CWC submits
that the CWC, Kolkata, has passed the impugned order taking into
consideration of the paramount of the child. He submits that the infant
was found in drain with grievous injuries and the local people have
rescued the new born baby. The new born baby was admitted in the
Hospital with grievous injury as an abandoned child.
15. Mr. Chakraborty submits that as there was no identity of the biological
mother and father of the new born child, after the treatment, the
hospital authorities with the help of police handed over the child to the
CWC. After the child was handed over to the CWC, the committee has
7
placed the child in the Indian Society for Rehabilitation of Children
(ISRC), a Specialized Adoption Agency. He submits that the petitioner
has made representation to the local police authority and the hospital
authority with the grievance that the child had fallen from her hands
and she became unconscious which is not correct. He submits that the
Investigating Officer submitted report stating that inspite of repeated
questioning, the petitioner could not explain how the child came to be
found inside a narrow drain.
16. Mr. Chakraborty submits that when the petitioner approached this
Court, this Court has observed that proof of maternity alone would not
entitle the mother to take custody of the child. He submits that the
committee has published notice in the English, Bangla and Hindi
Newspaper inviting claims and objections but the petitioner has not
filed any claims and objection.
17. Mr. Chakraborty submits that the CWC has declared the biological
parents were incapable of ensuring the safety and welfare of the child,
considering the circumstances, abandonment and serious injuries.
18. Mr. Chakraborty submits that on completion of all statutory formalities
under the Juvenile Justice (Care and Protection of Children Act, 2015
and Adoption Regulations, 2022, the Director, Child Rights and
Trafficking, West Bengal acting as District Magistrate for adoption
purposes, passed a Final Adoption order in favour of the adoptive
parents.
8
19. Mr. Chakraborty submits that as per the complaint of CWC, the police
registered a case and subsequently filed final report and the CWC has
filed objection to the said final report and the same is under
consideration before the Learned Magistrate.
20. Mr. Chakraborty submits that the CWC has passed the impugned order
in accordance with law and is not required to interfere with. Mr.
Chakraborty has relied upon the judgment in the case of Temple of
Healing Vs. Union of India reported in 2023 SCC OnLine SC 1590
and submits that Children having Unfit Guardian- Unfit Guardian can
be someone who is unable or unwilling for parenting, indulging in
substance (drug) abuse, abuse or alcohol, known to have abused or
neglected the child, having a criminal record, in need of care
themselves, mentally unsound etc. Children of all such parents may be
classified under this category.
21. Learned Counsel appearing for the State submits that on receipt of
complaint from CWC, a case was registered and as per the request of
the CWC, DNA test was conducted wherein it reveals that the petitioner
and one Ritam Das are the biological mother and father of the child. He
further submits that on completion of investigation, it was found that
the petitioner is not involved in committing any offence but the alleged
offence was committed by the mother of the petitioner but before filing
charge-sheet, the mother of the petitioner passed away and
accordingly, the police has submitted final report.
9
22. Heard the Learned Counsel for the respective parties, perused the
materials on record and the judgment relied by the parties. It is
admitted that the infant was found near the drain under bushes and
the villagers have taken the said infant to the police station wherefrom
the police took the child to the hospital for treatment as the infant
sustained several injuries on his body. It is also admitted that along
with villagers, one Ritam Das was also there and was claiming that he
is the biological father of the new born baby. It is also admitted that the
petitioner also reached to the hospital and was claiming that she is the
mother and requested the hospital authorities to record their name as
mother and father of the child. It is also admitted that the petitioner
given birth to the child at her residence.
23. The issue is whether the impugned order of the Child Welfare
Committee dated 18th November, 2024, by declaring the parents of the
child as incapacitated and directed the SAA to proceed for Legally Free
for Adoption process is sustainable under law or not?
24. The impugned order of the Child Welfare Committee dated 18 th
November, 2024, reads as follows:
“CHILD WELFAE COMMITTEE, KOLKATA
BENCH OF 1ST CLASS MAGISTRATE
SECTION 27(9) OF JJ ACT 2015
89, Elliot Road, Kolkata – 700016
Email Id: [email protected]
ORDER SHEET
10CW c/c/278/k/24
On 23.03.2024 a newly born baby was admitted to SNCU of RG
Kar Medial College Hospital with multiple injuries and serious
health condition. The Child rescued by District Child Helpline and
local people from a drain under Manicktala Police Station
jurisdiction. The child was admitted to the hospital as in
abandoned child. Due to severe injures the child was referred to
different departments including general surgery, neurosurgery,
pediatric surgery and ENT of the hospital. He was also put into
ventilation for respiratory support.
On stabilization of health condition the unknown child was placed
in Specialized Adoption Agency (SAA) for his further rehabilitation.
The unknown child was named as RIBHU and was declared as
abandoned child by Child Welfare Committee, Kolkata.
As per the order of CWC, Kolkata paper publication process was
initiated by District Child Protection Unit (DCPU) Kolkata of the
Child RIBHU. Thus no claimant was issued by DCPU Kolkata as
well as no one approached to the SAA regarding claiming the child.
Meanwhile an unknown couple appealed before Learned Court and
claimed themselves as the parent of the Child Learned Court
ordered for DNA Sample Test and the report is awaited. At the
same time Learned Court is with the opinion that proof of maternity
in this case would not entitle the mother to take back the child. So
being the custodian of the Child and undergoing the direction of the
Learned Court CWC Kolkata is proceeding as per the best interest
of the child.
The appealed parents are considered as incapacitated by CWC,
Kolkata to take the handover of the child as the newly born baby
was dropped in drain by them. Role of the appealed parents and
their family members are under question. Thus, CWC directed the
SAA, to proceed for LFA (Legally Free For Adoption) as the child
RIBHU has already declared as Abandoned child by the CWC,
Kolkata. We wish child RIBHU gets an adoptive family and enjoy
his childhood in a new family.
Sd/- Malina Dey Roy Sd/- Mita Biswas Sd/- Sagamitha
Chairperson 18.11.2024 Chowdhury
CHILD WELFARE Member 18.11.2024
COMMITTEE CHILD WELFARE Member
KOLKATA COMMITTEE CHILD WELFARE
89, Elliot Road, Kol- 16 KOLKATA COMMITTEE
18.11.24 89, Elliot Road, Kol- 16 KOLKATA
89, Elliot Road, Kol- 16
11
Sd/- Paulami Sengupta Sd/- Debdutta Chowdhury
18.11.2024 18.11.2024
Member Member
CHILD WELFARE COMMITTEE CHILD WELFARE COMMITTEE
KOLKATA KOLKATA
89, Elliot Road, Kol- 16 89, Elliot Road, Kol- 16.
25. The CWC, Kolkata, has declared the child as abandoned child.
“Abandoned Child” defiled under Section 2(1) of the Juvenile Justice
(Care and Protection of Children) Act, 2015 (hereinafter referred to as
“Act of 2015”) which reads as follows:
“2. (1) “abandoned child” means a child
deserted by his biological or adoptive parents or
guardians, who has been declared as abandoned
by the Committee after due inquiry.”
As per the Section 2(1) to declare the child as “abandoned”, an
inquiry is required. In case of orphan and abandoned child, the
Committee shall make all efforts for tracing the parents or guardians of
the child and on completion of such inquiry, if it is established that the
child is either an orphan having no one to take care, or abandoned, the
committee shall declare the child legally free for adoption. In the
present case since beginning the petitioner as well as Ritam Das is
claiming to be the biological parents. When the child was initially taken
to police station, Ritam Das was with the villagers. In the injury report
and admission document at the hospital, the name of Ritam Das is
recorded as he brought the child to the hospital along with police
personnel. It is also admitted that the petitioner has also reached to the
hospital and claiming to be the biological mother of the child but the
12
doctors have not recorded the name of the petitioner and Ritam Das as
biological parents to avoid future complications.
From the record, it reveals that the biological father along with
villagers took the child to the police station and thereafter to the
hospital along with police personnel. Mr. Ritam Das since beginning is
claiming that he is the father of the child. In the Injury Certificate, it is
recorded that Ritam Das along with police personnel brought the child
to the hospital. In the admission form of the child in the hospital, the
name of Ritam Das is recorded. Subsequently, the petitioner also
reached hospital and she is claiming that she is the mother of the child.
In the police report, it is recorded that despite several persuasions from
the biological mother and father, the attending doctors refused to
incorporate the particulars of the name of the biological parents in the
hospital record to avoid any further confusion.
26. The Chairperson, Child Welfare Committee, Kolkata, made a written
complaint to the police on 13th June, 2024, which reads as follows:
“To,
The Officer-in-Charge
Manicktala Police StationThe child presently placed as abandoned at
ISRC against the GD No.17 dated 24.3.24 of
Manicktala PS under the custody, of Child Welfare
Committee, Kolkata.
The said child was injured badly at the time of
admission as per report attained by R.G. Kar
Hospital. Though one lady came before me along
with her father as introduced and claimed that the
said baby was her child. Unfortunately, neither she
nor the accompanying person was able to explain
13any reason as to how and why the said child was
placed in a drain with full of cuts and bruises as
shown in the picture attached. Hence it appears
that they were incapable of providing adequate
protection to such a small baby and further
investigations are required to ascertain their
complicity in such heinous crime of inflicting near
injuries on the baby and dumping it to a drain.
In this connection we do hereby direct you to
lodge an FIR with immediate Investigation to
ascertain the role of the parents to decide on the
safety of the child in the hands of parents. You are
requested to treat this letter as my official
complaint and proceed as per law to get the justice
for the said child.”
In the complaint, it is mentioned that the petitioner had been in
the office of the CWC and was claiming that the said child is of her but
instead of making inquiry, the Chairperson made a written complaint to
the police for initiation of FIR and police registered a case for the
offence under Section 308/ 34 of the IPC. Prior to initiation of case, the
CWC by an email directed the police to conduct DNA test and the police
conducted DNA test and on receipt of report was found that the
petitioner and Ritam Das are the biological mother and father of the
child. After registration of case, the police has conducted investigation
and found that:
“It is mentioned here that enquiry was
continuing over the subject matter of the incident as
the fact reported on 23.03.2024 at about 21.05 hrs.
one Ritam Das and some local people Simla Road
of came to this P.S with an injured newborn male
baby for seeking police assistance for necessary
medical treatment of said new born male baby.
Ritam Das, claiming himself as the biological father
of the new born baby, also reported that the baby
was fallen from a height in an adjacent space of
premises no. 26/3E, Simla Road, Kol-6.
14
Immediately, they were accompanied to proceed to
R.G. Kar Medical College & Hospital. In the mean
while, one unmarried lady namely Asmita Poddar
@ Payel Poddar arrived at the hospital and claimed
herself as the biological mother of that injured new
born male baby. Finally, the injured baby was
admitted at S.N.C.U (OB) Gynecological Department
as unknown despite of several persuasions from
the reported biological patents the attending doctor
refused to incorporate the particulars of the
reported biological parents in hospital records to
avoid any further confusion.
Thereafter, the entire fact was appraised
before Child Welfare Committee. Subsequently on
09.04.24 the said new born male baby discharged
from R.G. Kar Medical College & Hospital and the
said baby was taken charge by SAA (ISRC) under
the custody of Child Welfare Committee, Kolkata as
per the direction of Chairperson Mahua Sur Roy,
CWC, Kolkata. Thereafter, Asmita Poddar @ Payel
Poddar and Ritam Das approached before CWC to
get back their child, but CWC declined their claim.
Finally, they prefer to file a Writ Petition vide W.P
No. 12471 of 2024 before the Hon’ble High Court.
On 03.06.2024 Hon’ble High Court passed an
order directing CWC to take steps to ascertain as to
whether Asmita Poddar @ Payel Poddar and Ritam
Das are the biological parents of the child in
question. Thereafter, as per the direction of CWC,
DNA profile have been done and sample were sent
to CFSL for examination.
By this time, on the complaint of the
Chairperson of CWC, a specific case vide
Manicktala P.S case no. 83 Dt. 13.06.2024 U/S-
308/34 IPC was initiated against the mother of the
child and others During investigation visited P.O,
collected the M.C and the B.H.T of the said new
born male baby from R.G. Kar Medical College &
Hospital, Kolkata, contacted with the locals and
examined them but none was agreed to came
forward to affirm the such fact. During
investigation engaged source and prepared
photographs of the P.O by the photographer and
prepared sketch Map of P.O by the expert of a plan
Maker. Served upon the notice U/S- 160 Cr.P.C to
15some locals and examined them and recorded their
statements.
By that time, received the DNA profile expert
report from CFSL and it could be learnt that the
genetic profile of the Asmita Poddar and Ritam Das
are consistent as the biological parent of the said
new born male baby. Accordingly, Hon’ble High
Court, Calcutta was apprised and on 03.07.2024
Hon’ble Court was pleased to dispose off the writ
petition with no specific order relating to hand over
of the child in question. The mother of the child
Asmita Poddar filed a another writ petition vide
W.P.A 17147 of 2024 in the same matter and
received the last order on 30.10.2024 that the
matter be placed before the Hon’ble regular bench,
but hearing is under process.
During further investigation, several local
witnesses were examined and their statement was
recorded u/s 161 Cr.P.C. Some of the witnesses
also made Judicial Statement. Collected the copies
of their Judicial statements and after consulted
with their statements and served upon the notice
U/S-91 Cr.P.C to one Pradip Ghosh to produce the
video clip which he recorded from his mobile
handset. In compliance with that notice Pradip
Ghosh produced one Pen Drive containing the said
video clip which was duly seized under proper
Seizure List.
In course of investigation, it could be
ascertained that there was a love affair in between
Asmita Poddar @ Payel Poddar and Retam Das.
They got married hiddenly without the knowledge
of their respective families. As such, they continued
residing at their respective previous homes. From
their wedlock, Asmita Poddar @ Payel Poddar
became pregnant and on 23.03.2024 Asmita
Poddar @ Payel Poddar gave birth the said male
baby at her residence at the 1st floor stair case
space at 26/3E, Simla Road, lalabagan, P.S-
Manicktala, Kolkata-6. Her mother namely Lakshmi
Poddar was the head of the family and had total
control over the entire family. She did not accept
such type of relation and had a strong objection
over this issue. Being frightened of their social
reputation, she dropped the said new born baby in
a narrow lane in an uneven ground adjacent of her
16building in between two walls in absence of Payel
Poddar in the evening on 23.03.24. As a result, the
said baby received multiple cuts and bruises
injuries. Meanwhile, on hearing the sound of crying
of the said baby some locals Subrata Shai @
Puchu, Sourav Paul @ Rony, Pradip Ghosh and
others rescued the baby from the said narrow lane
in between two walls, in the meantime Ritam Das
also arrived the spot and taken the rescued baby to
the P.S for seeking assistance of medical treatment.
Based upon the collected materials, statement
of witnesses and judicial statements, a prima facie
case has been established against the Laxmi
Poddar W/O- Arabinda Poddar of 45H/6, Simla
Road, P.S- Manicktala, Kolkata- 6U/S- 308 IPC.
Unfortunately, during the pendency of the
investigation, Laxmi Poddar W/O- Arabinda Poddar
of 45H/6, Simla Road, P.S- Manicktala, Kolkata-6
expired on 04.11.2024. Accordingly, collected the
Death certificate and verified the authenticity of her
Death certificate from the Birth and Death Register,
Health Department, Kolkata Municipal Corporation,
Kolkata.
Under the above circumstances, necessary
order may kindly be given to close the case
declaring the same as “True” u/s 308 IPC,
discharging Asmita Poddar @ Payel Poddar, the
mother of the child, if approved.”
27. The CWC has not produced any record to say that the committee has
conducted inquiry. The Committee has only relied upon three copies of
newspaper wherein the claims and objections have been called for but
no notices were issued either to the petitioner or to Ritam Das. Even as
per request of the CWC, DNA test was conducted and the same was
also within the knowledge of the CWC but have not taken into
consideration.
17
28. Considering that above, this Court finds that the decision of the CWC
with regard to declaring the child as “abandoned child” is bad and
illegal and not in accordance with law.
29. Now, the issue is, how the CWC came to conclusion that the parents
are incapacitated to look after the child. Section 2(14) provides for
“Child in need of care and Protection”. Sub-Clause (v) of Section 2(14)
provides that “Who has a parent or guardian and such parent or
guardian is found to be unfit or incapacitated, by the Committee or the
Board, to care for and to protect the safety and well-being of the child”.
30. In one hand, the CWC declared the child as “abandoned” and on the
other hand, the Committee declared the parents as “incapacitated”. The
respondents have filed several reports during hearing of the case but
have not produced any documents to say what are the evidence before
the committee to declare the parents as incapacitated. The Committee
has passed the impugned order only on the basis that the child was
found from drain with several injuries and villagers have brought to the
said child to the Police Station and thereafter the child was treated at
the hospital. When the petitioner has contacted the CWC for custody of
the child claiming that she is the biological mother, the Chairperson
made a complaint to the police for registration of case and case was
initiated. The committee requested the police authority for DNA test
and the same was conducted and confirmed that the petitioner is the
biological mother of the child but no notice was issued to the petitioner
for giving an opportunity of hearing to the petitioner.
18
31. The petitioner has filed the writ petition and the said writ petition was
contested by the CWC. In first order dated 3rd June, 2024, this Court
directed the committee to take steps whether the petitioner and Ritam
Das are the mother and the father of the child and if there is no dispute
with regard to the parentage of the minor child, then the Child Welfare
Committee, in the presence of the police, shall hand over the minor
child to the petitioner. By an order dated 3rd July, 2024, this Court
disposed of the said writ petition by the following order:
“1. It appears that the interim order passed by a
learned coordinate Bench has been complied
with to the extent that DNA samples have
been obtained.
2. With regard to the prayer for handing over the
child, this Court is not in a position to pass
such direction. The child cannot be returned to
the mother at this stage in the facts and
circumstances which have come to light.
3. Learned Senior Standing Counsel, Government
of West Bengal submits that a new born baby
was found in the drain with serious injury.
The child had been cut at various places. The
police found the child and took the child to the
hospital. Thereafter, the child was handed
over to the Child Welfare Committee at
Kolkata. The police authorities, uponmaking a
preliminary enquiry have registered an FIR
and the mother is an accused. It is denied that
the father had taken the child to the hospital.
4. The complicity of the mother in the offence
alleged, the mental stability of the mother and
whether any other person was involved in the
act of causing bodily harm and injury to the
baby, are required to be ascertained first. The
investigation by the police authorities will
reveal the truth. The child is safe with the
Child Welfare Committee and it is informed
that the child is recovering. Under such
circumstances, the writ court should not
19interfere. It is further stated that the mother’s
hospital discharge papers have been
tampered with, and the police authorities are
not sure if they are at all genuine.
5. The law provides for a mechanism as to how the
parents can approach the Child Welfare
Committee (CWC) for return of the child and
the petitioner will be at liberty to do so strictly
in accordance with law, and at the
appropriate stage, after the DNA results are
available.
6. It is informed that the CWC has already been
approached. The CWC will decide the prayer
for return of child in accordance with law, at
the appropriate stage.
7. The DNA test and return of the child, upon the
child’s parentage being confirmed, were
directed at the interim stage when these facts,
which have been brought into light before this
Court, were not available. Proof of maternity
alone in this case, would not entitle the mother
to take back the child, as the version of the
police reveal otherwise. The police
investigation must proceed strictly in
accordance with law and should be completed
expeditiously.
8. The writ petition is, thus, disposed of.
9. There shall be no order as to costs.
10. Parties are directed to act on the basis of the
server copy of this order.”
The committee has taken into consideration of one of the findings
of the order that “proof of maternity alone in this case, would not entitle
the mother to take back the child, as the version of police reveal
otherwise”. The Committee failed to take note of the portion of the
order wherein the Court has directed the CWC to decide the prayer of
the petitioner for return of child in accordance with law, at the
20
appropriate stage. To decide the issue whether the parents/guardians/
adoptive parents are incapacitated to look after the minor, the
committee has to examine the physical and mental health of the
parents, substance abuse and addiction, history of neglect or abuse,
environment and financial stability and criminal record or
incarceration. In the present case under which circumstances, the child
was found lying in a narrow lane in an uneven ground adjacent of the
building in between two walls are not considered by the committee. The
police report favours the petitioner but the same was not considered by
the committee. The committee has neither examined the parents nor
was any report called for to determine the economic conditions of the
parents. The police has examined the villagers who brought the child at
the police station and their statements were recorded by the police as
well as by the Magistrate under Section 164 of the Cr.P.C wherein the
clear picture of the incident is reflected but the committee has neither
examine the said aspect neither the petitioner nor Mr. Ritam Das is
given any opportunity to justify their claim.
32. Considering the above, this Court finds that before declaring the
parents of the child incapacitated the Committee has not followed the
due process of law and in a casual manner has passed the impugned
order.
33. Now the issue of declaring the child legally free for adoption. The
Committee has passed an order by declaring the child is Legally Free
21
for Adoption on the pretext that the parents are incapacitated and the
role of the parents are under question.
34. Procedure for declaring a child Legally Free for Adoption is provided
under Section 38 of the Act, 2015, which reads as follows:
“38. Procedure for declaring a child
legally free for adoption.– (1) In case of orphan
and abandoned child, the Committee shall make all
efforts for tracing the parents or guardians of the
child and on completion of such inquiry, if it is
established that the child is either an orphan
having no one to take care, or abandoned, the
Committee shall declare the child legally free for
adoption:
Provided that such declaration shall be made
within a period of two months from the date of
production of the child, for children who are up to
two years of age and within four months for
children above two years of age:
Provided further that notwithstanding
anything contained in this regard in any other law
for the time being in force, no first information
report shall be registered against any biological
parent in the process of inquiry relating to an
abandoned or surrendered child under this Act.
(2) In case of surrendered child, the institution
where the child has been placed by the Committee
on an application for surrender, shall bring the
case before the Committee immediately on
completion of the period specified in section 35, for
declaring the child legally free for adoption.
(3) Notwithstanding anything contained in any
other law for the time being in force, a child of a
mentally retarded parents or a unwanted child of
victim of sexual assault, such child may be
declared free for adoption by the Committee, by
following the procedure under this Act.
(4) The decision to declare an orphan,
abandoned or surrendered child as legally free for
22adoption shall be taken by at least three members
of the Committee.
(5) The Committee shall inform [the District
Magistrate,] the State Agency and the Authority
regarding the number of children declared as
legally free for adoption and number of cases
pending for decision in the manner as may be
prescribed, every month.”
35. On 23rd March, 2024, the new born baby was found lying in a narrow
lane in an uneven ground adjacent to the building in between two walls
with several injuries and the villagers have taken the baby to the police
station and thereafter the child was shifted to hospital for immediate
treatment. Since day one, the petitioner is claiming the child but due to
the circumstances, the child was found in a place along with several
injuries and there was no documentary evidence with regard to the
identification of the parents, the hospital and the police authorities
informed to the CWC. The petitioner had filed writ petition with a
prayer for a direction to hand over the child to the petitioner. As per the
direction of this Court, the Chairperson directed the police for DNA Test
and test was conducted and proved that the petitioner is the biological
mother. On the other hand, on 13th June, 2024, the Chairman made a
complaint to the police for initiation of case. The complaint is made on
the pretext that the petitioner went to the CWC with her father and
claiming that she is the mother but she failed to explain why how the
child was lying in the drain. The police-initiated case and started
investigation. On completion of investigation, the police did not find
that the petitioner has committed any offence on the other hand, on
23
completion of investigation, it is established that the mother of the
petitioner has committed an offence as she has dropped the new born
baby in a narrow lane in an uneven ground adjacent to her building in
between two walls in the absence of the petitioner in the evening of 23rd
March, 2024 as a result the baby received multiple cuts and bruises.
The police have come to the specific finding which the committee had
failed to do so. In the impugned order, the committee admitted that the
petitioner is the mother but declares the child as “abandoned” and
declares the parents as “incapacitated”. As per Section 38 of the Act of
2015, the Committee shall make all efforts for tracing the parents or
guardians of the child and on completion of such inquiry, if it is
established that the child is either orphan or having no one to take
care, or abandoned, the committee shall declare the child legally free
for adoption. The first duty of the committee for tracing the parents or
guardian. The petitioner is claiming herself to be the mother of the
child and approached the police, the hospital authorities and the CWC.
The Committee admitted that the petitioner is the mother. The
committee declares the child as abandoned but before declaring the
child as abandoned, no inquiry is conducted. The petitioner is not
examined. When the petitioner approached the CWC with her father,
the Chairperson made complaint against the petitioner for initiation of
case but the result of the police investigation is otherwise.
The second proviso of Section 38 provides that notwithstanding
anything contained in this regard in any other law for the time being in
24
force, no first information report shall be registered against any
biological parent in the process of inquiry relating to an abandoned or
surrendered child under this Act. In the present case, the CWC instead
of making an inquiry initiated a case against the petitioner. After
initiating FIR, against the petitioner, CWC declared the child as
abandoned, the parents as incapacitated and declared the child legally
free for adoption. Section 36 provides inquiry. Sub-Section (2) of
Section 36 provides for social investigation but in the present case,
there is no social investigation report is obtained by the committee.
36. This Court finds that the CWC has not followed the procedure in
accordance with the Act of 2015 and have also not provided any
opportunity of hearing to the petitioner before declaring the child as
abandoned, declaring the parents as incapacitated and the child free
for legal adoption.
37. Mr. Chakraborty has relied upon the following judgments:
(i) Geeta Dattatray Achari vs. State of
Maharashtra & Ors. reported in 2026 SCC
OnLine Bom 606.
(ii) Dasari Anil Kumar & Another vs. Child
Welfare Project Director and Others.
reported in 2025 SCC OnLine SC 1689.
(iii) K. Heerajohn vs. District Registrar,
Madurai District and Another reported in
2025 SCC OnLine Mad 9155.
(iv) Leelendra Deju Shetty & Anr. Vs. State of
Maharashtra & Ors. reported in 2024
SCC OnLine Bom 2363.
25
(v) Temple of Healing vs. Union of India
reported in 2023 SCC OnLine SC 1590.
38. No dispute with regard to the proposition of law that while taking
decision regarding custody or other issue pertaining to child, welfare of
the child is of paramount consideration. In the present case, the
committee has not examined the parents though the committee
admitted that the petitioner is the mother and Ritam Das is the father.
The Committee has also not called for any social status report of the
petitioner. The Committee has not considered mental stability, ability to
provide access to school, moral character, ability to provide continuing
involvement in the community, financial sufficiency and the factors
involving relationship with the child.
39. This Court has issued notices to the adoptive parents but inspite of
receipt of notice, none appeared on behalf of the adoptive parents.
40. Considering the facts and circumstances mentioned above, the decision
of the Child Welfare Committee dated 18th November, 2024, is set aside
and quashed and consequently, all actions with respect to the custody
of the minor, is also set aside and quashed in terms of the order dated
18th November, 2024.
41. The adoptive parents are directed to surrender the child to the CWC,
Kolkata, on or before 7th August, 2026 and the CWC, Kolkata, is
directed to place the child to SAA immediately, till the fresh inquiry is
completed. The CWC, Kolkata, shall conduct a fresh inquiry in
26
accordance with law by giving an opportunity of hearing to the
biological parents and also to call for report from the Investigating
Agency and to pass an appropriate order in accordance with law within
a period of four (4) weeks from the date of receipt of this order.
42. WPA No. 24620 of 2025 is allowed. Accordingly, CAN No. 1 of 2026
is disposed of.
Parties shall be entitled to act on the basis of a server copy of the
Judgment placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for,
be given to the parties upon compliance of the requisite formalities.
(Krishna Rao, J.)
Later:
Learned Counsel appearing for the CWC prayed for stay of the
operation of the judgment. Learned Counsel for the petitioner has
raised objection. Considering the submission made by the Learned
Counsel for the parties, prayer for stay is refused.
(Krishna Rao, J.)
