Unmarried couples, queer can jointly adopt a child, notes CJI, says CARA 'violative' of Constitution's Article 15

The Supreme Court Tuesday, while hearing petitions on same-sex marriage, gave a landmark order that queer and unmarried couples can jointly adopt children in India. Chief Justice of India (CJI) DY Chandrachud also observed that the right to enter into a union cannot be restricted on the basis of sexual orientation. Striking down CARA (Central Adoption Resource Authority) regulation, the CJI said the law cannot assume that only heterosexual couples can be good parents and that doing so would amount to discrimination. Calling the CARA guidelines for adoption “violative of (the rights of) the queer community,” the CJI said, “CARA regulation 5(3) discriminates between partners in atypical unions. It will disproportionately effect non heterosexual couples and thus an unmarried heterosexual couple can adopt but this is not the same for the queer community. The law cannot make an assumption about good and bad parenting and it perpetuates a stereotype that only heterosexuals can be good parents. Thus, the regulation is held to be VIOLATIVE of (the rights of) the queer community.” Referring to the CARA guidelines for adoption the CJI further said the Juvenile Justice Act does not preclude unmarried couples from adopting and the Union of India has also not proved that doing so is in the best interest of the child. “So CARA has exceeded its authority in barring unmarried couples,” he said. Emphasising that differentiating between married and unmarried couples has no “reasonable nexus” with the objective of CARA, CJI Chandrachud said: “It cannot be assumed that unmarried couples are not serious about their relationship. There is no material on record to prove that only a married heterosexual couple can provide stability to a child.” The CJI also said the CARA circular is violative of Article 15 of the Constitution. The Article prohibits discrimination on grounds of religion, race, caste, sex or place of birth. CJI Chandrachud in his remark also said people must have the freedom to pick their partner. Stating that queerness is a natural phenomenon, the CJI suggested that the government must make a committee on marriage rights and present a bouquet of gay rights to the LGBTQ community. He also observed that gender cannot be the same as sexuality.