(1) In case of an 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 an orphan having no one to take care, or the child is abandoned and there is no one to take care, 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 a child who is up to two years of age and within four months for a child who is above two years of age.
Legal Commentary & Landmark Judgments: Section 38
Section 38 of the Juvenile Justice Act, 2015 establishes the rigorous statutory procedure and mandatory timelines for the Child Welfare Committee to declare an orphan, abandoned, or surrendered child legally free for adoption.
Sub-section (3) mandates the procurement of non-traceability reports from the police and publication of notices before an abandoned child is declared legally free. Crucially, sub-section (4) commands that the decision declaring a child legally free for adoption must be signed by at least three members of the Committee, creating a robust collective safeguard against hasty or illicit severance of biological rights.
Section 38 balances two critical interests: protecting biological families from wrongful alienation and preventing institutionalized children from languishing indefinitely in orphanages. The Supreme Court's ruling in Temple of Healing has made the statutory timelines strictly enforceable, placing an affirmative obligation on CWCs to complete inquiries expeditiously.