New Delhi:A five-judge constitution bench of the Supreme Court, by a majority of 3:2, on Tuesday refused the right of adoption to queer couples. A five-judge constitution bench led by Chief Justice of India DY Chandrachud and comprising justices SK Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, delivered the judgment on a clutch of petitions seeking legal sanction for same-sex marriage. The bench delivered four separate judgments, where the judges agreed on some legal issues and differed on others. The apex court, by a majority of 3:2, declined the right of adoption to queer couples.
The Chief Justice and Justice Kaul, in their two separate and concurring verdicts, held one of the guidelines of the Central Adoption Resource Authority (CARA), prohibiting unmarried and queer couples from adopting as unconstitutional and illegal.
Regulation 5 (3) of CARA says “No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step-parent adoption”.
The Chief Justice, in his judgment, said there is no material on record to prove the claim that only a married heterosexual couple would be able to provide stability to the child. He said in fact, this court has already recognised the pluralistic values of our Constitution, which guarantee a right to different forms of association.
The Chief Justice said, “The Union of India has not submitted any cogent material to substantiate the claim that unmarried couples cannot be in a stable relationship. The Union of India has not been able to demonstrate that a single parent, who adopts a child will provide a more stable environment for a child, who is adopted than an unmarried couple. For all these reasons, Regulations 5(2)(a) and 5(3) of the Adoption Regulations are violative of Article 14 of the Constitution”.
The Chief Justice the law cannot assume good and bad parenting based on the sexuality of individuals. “Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents), which is prohibited by Article 15 of the Constitution”, he said.
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The Chief Justice said the adoption regulation is violative of Article 15 for discriminating against the queer community. The Chief Justice said according to the adoption regulations, unmarried couples cannot jointly adopt a child and added that the additional criteria prescribed by the CARA circular would also disproportionately affect non-heterosexual couples since the State has not conferred legal recognition in the form of marriage to the union between non-heterosexual persons.
“When the CARA circular is read in light of this legal position, a person of the queer community would be forced to choose between their wish to be an adoptive parent and their desire to enter into a partnership with a person they feel love and affinity with. This exclusion has the effect of reinforcing the disadvantage already faced by the queer community. For these reasons and the reasons recorded in Section D (xiii)(a)(III), the CARA circular is violative of Article 15 of the Constitution”, said the Chief Justice.
However, three other judges Justice Bhat, Justice Kohli and Justice Narasimha differed with the CJI and upheld the CARA regulations.
Justice Bhat, in a separate judgment, said when a couple adopts, they are jointly assessed, and in law, the responsibility falls on both parents. He said if one parent were to abandon the relationship, and the other parent is unable to maintain themselves or the child by themselves– recourse lies in other statutory provisions that enable remedy to be sought.
“To read the law in the manner adopted by the learned Chief Justice, with all due respect, would have disastrous outcomes, because the ecosystem of law as it exists, would be unable to guarantee protection to the said child in the case of breakdown of an unmarried couple, adopting jointly. This, therefore, would not be in the best interest of the child”, said Justice Bhat.
Justice Bhat said there are other enacted laws concerning adoption such as the Hindu Adoption and Maintenance Act. He elaborated that it contains the expression “wife and husband” and in these circumstances, the judges think that how Section 57(2) is cast, necessitating the existence of both spouses and their consent for the adoption of a child.
“In such a relationship, Regulation 5 (3) cannot be read down in the manner suggested by the learned Chief Justice. Therefore, in our opinion, whilst the argument of the petitioners is merited on some counts, at the same time, the reading down of the provision as sought would result in the anomalous outcome that heterosexual couples, who live together, but choose not to marry, may adopt a child together and would now be indirect beneficiaries, without the legal protection that other statutes offer – making it unworkable”, said justice Bhat.
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Justice Bhat said that given the social reality that queer couples are having to adopt in law as individuals, but are residing together and for all purposes raising these children together – means that the State arguably has an even more urgent need to enable the full gamut of rights to such children, qua both parents. “For instance, in an unforeseen circumstance of the death of the partner who adopted the child as an individual, the child in question may well become the ward of such deceased’s relatives, who might (or might not) even be known to the child, whereas the surviving partner who has been a parent to the child for all purposes, is left a stranger in the law”, he said.
Justice Bhat said it is incontestable that Section 63 of the Juvenile Justice Act, provides legal status to the child, about their adoptive parent (s). “However, that per se, is not adequate to address all concerns relating to the child. There would be difficulties faced by children, in claiming entitlements such as maintenance, in the absence of a general law”, he said.
