New Delhi: An ‘unwanted’ baby girl who was buried alive shortly after her birth and left for dead three years ago in Bareilly, Uttar Pradesh, now has two families fighting a hotly contested legal battle over her. One is a former local BJP MLA’s family, and the other is a couple from Malta.
Last year, the Indian nodal agency for adoption granted permission to the foreign couple to adopt the child. However, the family of former MLA Rajesh Mishra aka Pappu Bhartol, who took care of the child after she was rescued, are contesting this. They claim that their application to adopt the child was wrongfully passed over.
While the Delhi High Court had last November given the go-ahead for the Maltese couple to adopt the child, the fight has now reached the Supreme Court.
In an apex court petition, the politician’s nephew Amit Mishra has alleged that the Central Adoption Resource Authority (CARA), a statutory body that comes under the Women & Child Development Ministry, flouted guidelines by releasing the child for adoption by foreigners rather than giving priority to Indian prospective parents.
Further, the petitioners have accused CARA of wrongfully declaring the girl as a “special needs” child — which incidentally reduces the wait time for adoption — and have sought a fresh medical examination.
Speaking to ThePrint, Rajesh Mishra said that he and his family had grown emotionally attached to the child and had taken care of most of her medical and other expenses ever since she was found on 10 October 2019. Mishra’s nephew and his wife had registered on CARA and applied to adopt the baby soon thereafter.
“The family has bonded with the child,” Mishra said.
The case has also divided two government bodies working under the WCD Ministry. While CARA is yet to respond to the allegations in the Supreme Court petition, it earlier stood firm in the Delhi High Court about its decision to let the Malta couple have the baby.
However, the National Commission for Protection of Child Rights (NCPCR), which is also a statutory body under the WCD Ministry, has come out in support of Mishra’s family and pointed to loopholes in the adoption cleared by CARA.
The matter is currently pending before a top court bench led by Justice Sudhanshu Dhulia, who has asked Amit and his wife to establish their right to adopt the child. The existing law does not entitle a couple to choose a child for adoption, the court observed orally during a hearing Tuesday, asking them to prove their bonafides. The next hearing has been fixed for 28 February.
Here is a look at the twists and turns in the case so far, from the discovery of the baby to the court battle.
Also read: Why India struggles with low adoption rates — caste, class to genetics
How it all started
Back in October 2019, Rajesh Mishra was the sitting MLA from Bithari Chainpur in Bareilly district. According to him, he was the first port of call when a newborn was found buried in the ground. Almost miraculously, she was still alive.
“This child was discovered on 10 October 2019, while a sub-inspector’s family was searching for an appropriate place for their stillborn baby. While a pit was being dug, the spade struck a pot and then the people present there could hear a baby crying. Since I was a sitting MLA then, those who chanced upon this discovery immediately called me. The baby, it seems, was buried alive. She was born prematurely,” Mishra told ThePrint.
Mishra said he first took the baby to the district hospital, but since her condition was extremely poor, he shifted her to a private medical facility.
“It is the best hospital in Bareilly and she was kept there for 56 days, till December 2019, and I footed the bill,” the former MLA said, adding that the family grew attached to the child during this process.
Meanwhile, the family submitted a letter to the district Child Welfare Committee, intimating it about the child’s rescue. After her discharge from hospital, the family admitted the baby to a specialised adoption agency (SAA) called Warne Baby Fold in Bareilly for her upkeep until she could be legally adopted.
The BJP leader claimed he and his family took care of the child and looked after her needs even while she was in the SAA. “We paid for all her necessary expenses,” he said.
According to court documents, even before the baby was transferred to the SAA, Mishra’s nephew Amit and the latter’s wife applied for adoption in accordance with the Juvenile Justice Act, 2015, and the Adoption Rules, 2017.
“We used to check the CARA website on a regular basis because we were told that once the child is declared for adoption, her name and particulars would be uploaded on the portal. I had deputed at least 50 persons from my team to keep a check on the website, but we never saw the girl’s name for adoption by Indian parents,” Rajesh Mishra said.
While the child was formally placed for adoption in July 2020, he alleged his family was never informed.
In 2022, the family learnt from sources that the Malta-based couple had been cleared to adopt the girl.
Rajesh Mishra then complained to the NCPCR, alleging that the girl had been incorrectly put up for adoption under the ‘special needs’ category.
From Delhi HC to SC
Based on Mishra’s complaint, in August 2022, the NCPCR asked CARA not to process the adoption and also sought a report from the district magistrate of Bareilly. The SAA was also told to withdraw the adoption plea regarding the child.
Pursuant to the this, CARA informed the Malta-based couple that due to the NCPCR’s intervention, the child’s adoption had been kept in abeyance.
The Malta couple challenged this before the Delhi High Court, where CARA denied any illegality in the adoption procedure.
Agreeing with CARA last November, the high court held that Amit Mishra and his family did not have legal rights over the child just because they had looked after her post her rescue. The HC observed that while the Mishras’ care of the child had been “laudable”, superior adoption rights for such caregivers were “neither envisaged nor sanctioned” by the law.
Asking CARA to process the Malta couple’s adoption application, the court said that the placement process had taken three years and it was “time [that the child] finds the quiet and comfort of a home and family”.
After this, Amit Mishra and his wife moved the Supreme Court, where the case is being heard.
Questions over ‘special needs’
In an affidavit filed before both the Delhi HC and Supreme Court, the NCPCR has sought a probe in the case.
According to the child rights’ body, there had, until 2022, been a vacuum in the adoption regulations regarding the procedure to be followed to declare a child as one with “special needs”.
The commission believes this vacuum in the law could have been misused to get the declaration.
The new regulations mandate the chief medical chief officer of a district to furnish a certificate that establishes a child as one with special needs. The regulations were revised to “remove the mischief that could have been in the earlier regulations,” the NCPCR has said.
Moreover, in the absence of clear regulations, the SSA should have followed the provisions of Rights of Persons with Disabilities Rules, 2017, to declare the child as one with special needs, the NCPCR has claimed. Under this, the SSA should have applied for a disability certificate before a medical authority.
Mishra, meanwhile, insists that the girl is not a “special child” and is demanding a medical re-examination to help establish this.
“Following the NCPCR’s letter, the district magistrate had called for a report from a private medical practitioner who issued the certificate. That report stated that the child has been diagnosed with epilepsy. But her MER (microelectrode recording) done in October 2020 showed no signs of her being a special child,” he said.
(Edited by Asavari Singh)
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