There is no difference between an abandoned child and orphan, Bombay HC

The Juvenile Justice Act does not distinguish between an abandoned child and an orphan, according to a division bench of Justices GS Patel and Neela Gokhale.

Division Bench Notes there is no distinction between child who is abandoned and a child who is orphaned

The order states,

“We note the definition of orphans, interestingly, also includes children whose legal guardian is incapable of caring for the child. Point to be noted is that act itself does not distinguish between child who is adopted and child who is orphan”

Court hearing a petition which sought issuance of certificate from authorities to girls declaring them as abandoned

A petition by the charity organisation NEST India Foundation asking the authorities to issue the girls a certificate identifying them as abandoned children was being heard by the court.

Purnima Kantharia, pleader for the government, informed the court that a government resolution prohibits awarding a certificate to an abandoned child. She stated that since only orphans were eligible for reservation and abandoned children could not, the government could only issue certificates to orphans.

She said that while abandoned children had someone to care for them, orphans had no one to do so.However, the Court was not persuaded. It questioned Kantharia as to why the State thought an abandoned child had more advantages than an orphaned child and demanded an explanation.

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Court asks Government to explain on what basis an abandoned child is more advantaged than an orphaned one

The Bench said,

“There is no distinction, at least there is no moral distinction. What according to you is the material distinction justifying or taking away the reservation to abandoned child? What is the logic? There is distinction without any difference. It is entirely meaningless, and it defeats the purpose of the Juvenile Justice Act. How an abandoned child, whose parents are alive is not advantaged, to an orphaned child,”

Court underlines it is States responsibility to look after children, both orphaned and abandoned and ensure their well being

Justice Patel said.

“We expect far less bureaucracy from the state and far more concern from the state. These children are not responsible for their condition, why is the state implicitly saying to the children, ‘your parents abandoned you, too bad!’ Technically, just see, neither of them is a child, what they are asking is a certificate of their tragic past, are we going to deny them that as well?”

The Juvenile Justice Act committee refused to provide a certificate since the girls were no longer minors and their mother had paid them a few visits, the High Court was informed during the hearing.

The committee also requested a police verification report from the girls. A police report was produced as a result, stating that their mother's whereabouts were unknown. In light of this, the Court came to the conclusion that the committee could accept the report.

Court asks the committee to conduct an enquiry and grant the document certifying that the two girls has been abandoned as children

Even though the two girls may be adults now, the court instructed the committee to perform an investigation and give the paperwork verifying that they had been abandoned as youngsters in the past.

The judge said ordering the committee to decide the case taking into account the JJ Act's provisions

"They are not asking for reservation or admission into some institution! Investigation has been done, these girls want to study because they have suffered all possible prejudice, are we to deny them that?”

Further the Court said,

"Having regard to the state of the record and fact as they have unfolded, we are satisfied that necessary material and child welfare committee is already on record. The unwillingness of the guardians to care for them manifests from the record,"

The children asked the court to declare that their time in the trust was spent as an abandoned child and orphan under the JJ Act, the court emphasised.

The Court Ordered,

“The committee is not to reject the application, as being non-compliant, as we are satisfied that there is sufficient compliance,”

The petition and any interim applications were not dismissed by the Court; instead, the matter was continued for consideration until February 22, 2023, the deadline for the committee to abide by the ruling.

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