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 18

th 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 23

rd

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

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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 3

rd

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 13

th June, 2024, under Section 308/34 of the IPC. As per the

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request of CWC dated 9

th 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 4

th

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 13

th October, 2025, the Assistant Secretary, West Bengal

Commission for Protection of Child Rights informed the Advocate of the

petitioner that on 18

th

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

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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

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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 9

th June, 2024, directing to conduct DNA test and on 19

th June,

2024, samples were sent for expert opinion and on 27

th

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.

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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 18

th 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 1

ST

CLASS MAGISTRATE

SECTION 27(9) OF JJ ACT 2015

89, Elliot Road, Kolkata – 700016

Email Id: kolkatacwc@yahoo.com

ORDER SHEET

10

CW 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

Chairperson

CHILD WELFARE

COMMITTEE

KOLKATA

89, Elliot Road, Kol– 16

18.11.24

Sd/- Mita Biswas

18.11.2024

Member

CHILD WELFARE

COMMITTEE

KOLKATA

89, Elliot Road, Kol– 16

Sd/- Sagamitha

Chowdhury

18.11.2024

Member

CHILD WELFARE

COMMITTEE

KOLKATA

89, Elliot Road, Kol– 16

11

Sd/- Paulami Sengupta

18.11.2024

Member

CHILD WELFARE COMMITTEE

KOLKATA

89, Elliot Road, Kol– 16

Sd/- Debdutta Chowdhury

18.11.2024

Member

CHILD WELFARE COMMITTEE

KOLKATA

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 13

th June, 2024, which reads as follows:

“To,

The Officer-in-Charge

Manicktala Police Station

The 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

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any 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

15

some 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

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building 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.

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31. The petitioner has filed the writ petition and the said writ petition was

contested by the CWC. In first order dated 3

rd 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 3

rd

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

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interfere. 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

22

adoption 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 23

rd

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 13

th

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 23

rd

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 18

th

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

18

th November, 2024.

41. The adoptive parents are directed to surrender the child to the CWC,

Kolkata, on or before 7

th 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.)