No Distinction Between Orphaned & Abandoned Child- HC Pulls Up Maharashtra Govt For Differentiating In Providing Benefits

The Bombay High Court has observed that as per the Juvenile Justice (Care and Protection) Act 2015 (JJ Act), there was no distinction between the abandoned Children and the orphaned children and pulled up the Maharashtra Government for its stand that benefits given to orphaned children could not be given to abandoned children.

The Bench of Justice Gautam S. Patel and Justice Neela Gokhale observed that “We also note the definition of “orphan” in Section 2(42) of the Act. Interestingly, this definition in sub-clause (ii) states that an orphan is also a child whose legal guardian “is not willing to take or capable of taking” care of the child... point to be noted is that the Act itself does not seem to make a sharp distinction between a child who is abandoned and a child who is orphaned.”

Advocate Dr. Abhinav Chandrachud appeared for the petitioner and Advocate PH Kantharia appeared for the respondent-State.

In this case, NEST India Foundation, a charitable trust, had preferred the interim application and had sought for directions to authorities to issue certificates to two adult girls wherein they were declared as abandoned children and that they were eligible to avail the benefits of government schemes, including reservation in educational institutions.

It was contended by the Counsel for the State that as per Government Resolution, the Maharashtra Government differentiated between orphaned and abandoned child and therefore, the certificate could not be issued to abandoned children as they have someone to take care of them.

The Court noted that in the case, the unwillingness of the guardians of both the young ladies was manifest from the police report submitted before it. Moreover, whereabouts of mothers of both the ladies were unknown.

The Court rejected the contention of the respondent and said that as per the provisions of JJ Act, the ‘abandoned child’ was a child who was deserted by his biological or adoptive parents or guardians and the ‘orphan’ was also a child whose legal guardian ‘was not willing to take or capable of taking’ care of the child. "Making such a distinction was entirely meaningless and it defeats the purpose of the Juvenile Justice Act." said the Court.

The Court further noted that what was required was a certificate from Child welfare Committee wherein their status was declared as ‘abandoned’ so that they could progress and get ahead in life. “What they seek really is a declaration that their childhood at the Petitioner orphanage was one that was spent in a state of their being under the provisions of the JJ Act especially as abandoned children and orphans. This is the limited documentation that is sought. They need this certification for their future educational endeavours.” said the Court.

“We ourselves are sufficiently satisfied with the factual material but the Act does contemplate an enquiry and declaration by the Committee. It is for this limited purpose that we direct the CWC to issue the necessary declaration after the limited enquiry that we have outlined above. To clarify: this enquiry does not relate to the two young ladies as children today but to their past as children until adulthood in the orphanage. The Committee is not to reject the application for noncompliance since we are satisfied that there is sufficient compliance.” observed the Court

Accordingly, the interim application was allowed and the matter was listed for further hearing on February 22, 2023.

Cause Title- The Nest India Foundation v. State of Maharashtra & Ors

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