Supreme Court Dismisses Plea Challenging Adoption Of Girl Child Found Buried Alive

The Supreme Court has dismissed a plea filed by a married couple residing in the state of Uttar Pradesh who approached the Apex Court against the Delhi High Court’s direction to complete the process of adoption of a girl child ‘S’ to a married couple residing in Malta.

“[P]oint highlighted was that there were too many cases of adoption from Malta. But the statute lays down a robust scrutiny process in each case of inter-country adoption. On mere suspicion based on such statistics, we cannot interfere with the judgment of the High Court,” said a Bench of Justice Aniruddha Bose and Justice Sudhanshu Dhulia on the point that unusually asymmetrical numbers of Special needs Children were being adopted in Malta.

In 2019, the girl child (Child 'S') was found buried alive in a cremation ground by the petitioner’s family. Further, the petitioners rescued the Child ‘S’ who was abandoned and got her treated through various medical clinics.

The Child ‘S’ was admitted to the hospital for medical treatment and relevant information was given by the petitioners to the Child Welfare Committee (CWC).

The Central Adoption Resource Authority(CARA) gave No-objection for inter-country adoption after the child was matched to the couple residing in Malta through the process specified in the Juvenile Justice (Care and Protection of Children) Act, 2015.

On further examination, a team of CARA found that she is suffering from epilepsy and thereafter she underwent treatment for epilepsy The CWC declared the Child legally free for adoption and her adoption was available under “special needs category” on the portal of CARA.

The Respondent nos. 3 and 4, a married couple from Malta, made reservation for inter-country adoption of Child ‘S’, after no application was made within the stipulated period of 15 days by any Indian, NRI or OCI.

The entire process of declaring Child ‘S’ as free for adoption was undertaken twice. However, in August 2022, CARA issued a communication for withdrawal of the adoption process till the investigation gets completed after the petitioners moved an application before the National Commission for Protection of Child Rights.

The couple from Malta challenged the legality of the above direction of CARA before the Delhi High Court.

In the impugned judgment, the Delhi High Court quashed the communication of CARA and directed it to take further steps to complete the process of adoption.

Senior Advocate Manish Singhvi contended on behalf of the petitioner that the Child ‘S’ was being made free for adoption as a “Special Needs Child” but, it should have been a normal child. The main reason for putting her under the special needs category was that the Child was suffering from Epilepsy whereas the FPAPs (Foreign Prospective Adoptive Parents) in their declaration earlier had expressed unwillingness.

The Court rejected the above argument by recording that, “there was evidence that the child was suffering from various ailments which merited her being placed in Special needs category. The High Court failed to find any justification for ordering a review medical examination. We have no reason to take a contrary view".

“[S]uch unwillingness was at the preliminary level only. They were aware that Child ‘S’ had this medical condition and were still willing to adopt her,” added the Court further.

The petitioners also submitted before the Apex Court that despite their best efforts, they could not have access to the portal under the Special needs category within 15 days and therefore, making the child available for inter-country adoption was not proper. Further, it was argued that the petitioners were denied the opportunity to adopt the Child in spite of having rescued her.

However, the Court rejected the above argument and said, “we are unable to accept this contention as the Learned Additional Solicitor General has made a clear submission before this Court that there was no problem with the portal”.

Additional Solicitor General K.M. Nataraj appeared for NCPCR and CARA. Senior Advocate Menaka Guruswamy appeared on behalf of the private respondents i.e. couple from Malta.

The Supreme Court noted, “main complaint of the petitioners, who assail this judgment before us, is that they were not given adequate opportunity to adopt the Child ‘S’ and they being Indian nationals, should have had priority in that process”.

The Court dismissed the Special Leave Petition and said, “as the statutory provisions stand complied with, we are not inclined to interfere with the judgment of the High Court, which we find to be a well reasoned order which has dealt with all the relevant issues”.

Cause Title- ******* v. ********* (Retracted on directions of the Court)

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