Safiya Malik

A Division Bench of the Calcutta High Court comprising Justice Sabyasachi Bhattacharyya and Justice Uday Kumar held that an application seeking guardianship under the Guardians and Wards Act, 1890 was not maintainable in light of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015. The Court observed that the statutory framework under the Juvenile Justice Act governed the matter and directed the Child Welfare Committee, North 24 Parganas, to conduct an inquiry under Section 36 of the Act. The direction was issued to ascertain whether the appellant qualified as a fit person for the care and custody of the two minor children involved.

The case arose out of an incident in which the appellant, while returning from work, found a mentally deranged woman in active labour on a public street. The appellant took the woman to R.G. Kar Medical College and Hospital, where she delivered twin boys on August 28, 2021. The appellant then took responsibility for the infants, raising them over a period of more than three years. During this time, she admitted the boys to a local English medium school. The biological mother later went missing and remained untraced at the time of proceedings.

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The maternal grandmother of the children, Ohila Bibi, submitted affidavits in both the trial and appellate courts stating her financial inability to raise the children and expressing no objection to the appellant continuing their care and custody. She was represented by counsel before the High Court and supported the appellant’s position.

The appellant filed an application under Sections 7, 12, and 25 of the Guardians and Wards Act, 1890 seeking guardianship and custody. The Additional District and Sessions Judge, Second Court at Barrackpore, dismissed the application, holding that the children came within the definition of “abandoned child” under Section 2(14)(v) and (vi) of the Juvenile Justice Act, and that jurisdiction rested with the Child Welfare Committee.

The appellant argued that the children, being Muslims and having a missing mother with mental illness, were entitled to custody under Mohammedan personal law, particularly the doctrine of Hizanat, which prefers maternal relatives, especially the maternal grandmother. The appellant also relied on the Islamic concept of Kafalah, recognised by international instruments such as the United Nations Convention on the Rights of the Child and the Hague Convention of 1996, to support her role as a non-parental caregiver.

The appellant referred to the Supreme Court decision in Laxmi Kant Pandey v. Union of India (1984) 2 SCC 244, contending that the Guardians and Wards Act permitted courts to appoint guardians in the best interest of children, even permitting foreign nationals to be appointed as guardians. The appellant further submitted that the definition of “guardian” under Section 2(31) of the Juvenile Justice Act did not grant the Child Welfare Committee the authority to appoint guardians, but only to care for and rehabilitate children.

It was submitted that the maternal grandmother had neither abandoned nor surrendered the children, and instead chose to allow the appellant to care for them. Consequently, the children were not “abandoned” within the meaning of the Juvenile Justice Act. The appellant argued that suitable safeguards could be imposed, such as regular reporting to the jurisdictional court or police, to ensure ongoing monitoring.

The Court observed that the children could not be governed by either Hindu or Mohammedan personal law since the appellant was a Hindu and the children belonged to a Muslim family. It stated that “the concept of Kafalah is obviously not attracted, since the appellant is not a Muslim governed by Mohammedan Law.” The Court rejected reliance on Laxmi Kant Pandey, noting that the legal framework had since evolved with the enactment of the Juvenile Justice Act, which now governs issues related to children in need of care and protection.

The Court examined Section 2(14) of the Juvenile Justice Act, which defines “child in need of care and protection,” and analysed whether the minors met any of the relevant categories. It noted that while certain criteria under Clauses (v), (vi), and (vii) could potentially apply, no declaration had yet been made by the Child Welfare Committee. The Court also considered the definitions of “abandoned child,” “surrendered child,” and “orphan,” concluding that no conscious act of surrender or abandonment had occurred.

The Bench recorded that “on a comprehensive assessment of the situation of the minor children concerned in the present case, they cannot but be said to be ‘orphans’ under Section 2(42)(ii) of the JJ Act.” However, it clarified that institutionalisation under Section 32(1) was not mandatory, as the children were not “orphans without family support.” It held that the appellant, having provided consistent care, constituted a form of “family support” within the meaning of the statute. The Court recorded, “the appellant can, within the contemplation of Section 32(1), comprise of a family unit for the purpose of giving ‘family support’ to the children.”

The Court referred to the general principles under Section 3 of the Juvenile Justice Act, including the “principle of best interest,” “principle of safety,” “principle of positive measures,” and “principle of institutionalisation as a measure of last resort.” It held that institutional care must be a last resort after reasonable inquiry, especially when children are being adequately cared for outside of institutions.

The Court modified the order of the trial court and issued the following directions:

A copy of the judgment is to be forwarded to the Child Welfare Committee, North 24 Parganas, by Special Messenger at the cost of the appellant. The CWC shall commence an inquiry under Section 36 of the Juvenile Justice Act.

During the inquiry, the CWC shall ascertain whether the appellant qualifies as a “fit person.” If so, she may retain custody of the children during the inquiry.

Upon conclusion of the inquiry, the CWC shall determine whether the appellant may be considered a “fit person” under Section 37(1)(d) for long-term or temporary care. If this is not feasible, the CWC shall explore the possibility of granting foster care under Section 37(1)(e) read with Section 44 or sponsorship under Section 37(1)(f) read with Section 45.

If any of these options are considered appropriate, the CWC shall assess whether the children are “orphans having no one to take care” and if not, they shall not be placed for adoption under Section 38 of the Act.

The CWC must apply the principles under Section 3 of the Act, particularly Clause (xii), which treats institutionalisation as a step of last resort.

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If the children are placed with the appellant, whether as a “fit person,” under foster care or sponsorship, the CWC shall monitor their welfare as per the Act.

The Court stated that the CWC is not mandated to place the children with the appellant or to refrain from declaring them legally free for adoption. It must conduct a proper inquiry and make an independent determination guided by the statutory framework.

Advocates Representing the Parties

For the Petitioners: Mr. Kushal Chatterjee, Advocate; Mr. Oishik Chatterjee, Advocate

For the Respondents: Mr. Partha Pratim Roy, Advocate; Mr. Anirban Das, Advocate; Mr. Debrup Choudhury, Advocate

Case Title: Sony Bagchi Vs. Farida Bibi

Case Number: F.M.A. No.195 of 2025 with CAN 1 of 2024 and CAN 2 of 2024

Bench: Justice Sabyasachi Bhattacharyya and Justice Uday Kumar

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