Same-sex marriage verdict: Can unmarried partners, gay couples now adopt in India?

While India’s Supreme Court declined to legalise same-sex marriage and did not grant gay couples adoption rights, there is some good news. CJI DY Chandrachud in a ruling on Tuesday struck down the Central Adoption Resource Authority (CARA) regulations which stop gay and unmarried couples from adopting. However, the five-bench judge led by CJI DY Chandrachud in a 3-2 verdict stated that non-heterosexual couples cannot be granted the right to jointly adopt a child. Let’s take a look at what the SC said about adoption for gay and unmarried couples and the adoption laws in India: What did the Supreme Court say? As per NDTV, CJI DY Chandrachud, reading out his verdict on same-sex marriages, said the judges shared “degree of agreement and a degree of disagreement” The disagreement, Chandrachud added, was on how far the court should go. Bar and Bench quoted Chandrachud as saying, “The law cannot make an assumption about good and bad parenting and it perpetuates a stereotype that only heterosexuals can be good parents. The CJI said regulation 5(3) of CARA – a government agency which comes under the Union Ministry of Women and Child Development and lays down the rules for adopting children in India – “discriminates between partners in atypical unions.” “A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against the queer community," he said as per India Today. As per Live Law, CARA regulation 5(3) states: “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 regulation is violative of the rights of the queer community, he added.

When it comes to adoption, for unmarried couples the CJI said CARA has ‘exceeded its authority” due to its regulation 5. “ Unmarried couples are not excluded from adopting but regulation 5 prevents them by stating the couple must be in a stable marital relationship for 2 years.. JJ Act does not prevent the unmarried couples from adopting but only when CARA regulates the same but it cannot defeat the objective of JJ Act,” Chandrachud noted. “There is no material on record to prove that only a married heterosexual couple can provide stability to a child,” Justice Chandrachud added as per India Today. [caption id=“attachment_13260502” align=“alignnone” width=“640”] Gender rights activists and supporters of LGBTQ community rally for equal marriage rights. File image/AFP[/caption] As per Live Law, Chandrachud ruled that unmarried couples, including gay couples, could jointly adopt. The CJI ruled that Regulation 5(3) of the CARA Regulations, insofar as it prohibited unmarried and queer couples from adopting, violated Article 15 of the Constitution. The CJI thus struck down CARA. Chandrachud was joined by Justice SK Kaul in saying that gay couples and unmarried couples ought to be given adoption rights and that CARA had surpassed its authority. “The Union of India has not proved that precluding unmarried couples from adopting is in the best interest of the child. So CARA has exceeded its authority in barring unmarried couples,” Chandrachud stated as per Live Law. “Differentia between married couples and unmarried couples has no reasonable nexus with the objective of CARA - the best interests of the child,” CJI Chandrachud said as per Hindustan Times. However, the other three judges – justices Ravindra Bhat, Hima Kohli, and PS Narasimha – disagreed with the decision. “We voice certain concerns. This is not to say that unmarried or non-heterosexual couples can’t be good parents… given the objective of section 57, the State as parens patriae has to explore all areas and to ensure all benefits reach the children at large in need of stable homes,” Justice Bhat was quoted as saying by India Today. As per Live Law, Justice Bhat disagreed with Chandrachud that gay couples had the right to adopt. Bhat said that Regulation 5(3) of the CARA regulation could not be held unconstitutional – which Justice Hima Kohli agreed with. Justice PS Narasimha, also agreed with Bhat’s view that CARA regulations could not be  deemed unconstitutional, as per Live Law. Indian Express quoted Justice Bhat as saying that the Centre must decide when it comes to policy changes. What are the adoption laws in India? As per Outlook, adoption in India is governed by

• The Hindu Adoption and Maintenance Act, 1956
• The Guardianship and Wards Act, 1980
• The Juvenile Justice (Care and Protection of Children) Act, 2000.

In India, a single man is not eligible to adopt a child. When it comes to married couples, both spouses need to agree for an adoption As per Outlook, CARA Section 5(2) A says that a child can be adopted only if “there is consent of both the spouses for the adoption in case of a married couple”, and “a single male shall not be eligible to adopt a girl child”. Meanwhile,  CARA Section 5(3) of the Act states that that a married couple cannot adopt unless they have been in a stable, relationship for a minimum of two years.

This excludes adoption in the case of relatives or step-parents.

The National Commission for Protection of Child Rights (NCPCR) had opposed adoption rights of same-sex couples. The child rights body had argued that children raised by same-sex parents may have a limited exposure to the traditional gender role models. The commission has said the Hindu Marriage Act and the Juvenile Justice Act do not recognise adoption by same-sex couples. “Same-sex parents may have a limited exposure to the traditional gender role models and hence, the children’s exposure would be limited and their overall personality growth would be affected,” the plea has said. The petition has referred to studies on adoption by same-sex parents which, it claimed, show that such a child gets affected both socially and psychologically.

“Allowing adoption to same-sex couples is akin to endangering the children,” the plea has said.

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Referring to a study conducted by the Catholic University of America, the plea has said emotional and developmental problems are twice as prevalent in children of same-sex parents than in children with opposite sex parents. The court ruling comes five years after a historic 2018 judgment when the Supreme Court scrapped a colonial-era ban on gay sex. Only Taiwan and Nepal allow same-sex unions in Asia, where largely conservative values still dominate politics and society. Prime Minister Narendra Modi’s government had opposed the petitions, calling them “urban elitist views” and stating that parliament is the right platform to debate and legislate on the matter. It had also said that such marriages are not “comparable with the Indian family unit concept of a husband, a wife and children”. With inputs from agencies