The Supreme Court on Tuesday while pronouncing its verdict on a series of petitions seeking regularisation of ‘same-sex marriage’, denied adoption rights to queer unmarried couples. The five-judge Constitution bench passed a 3:2 verdict against adoption rights for the LGBTQIA community.
While Chief Justice DY Chandrachud and Justice Sanjay Kishan Kaul said that queer couples should be given adoption rights, Justices Ravindra Bhat, Hima Kohli, and PS Narasimha disagreed.
“Law can not make an assumption about 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…this assumption is not different from the assumption that individuals of certain class or caste or religion are better parents,” the CJI said, adding that the current “adoption regulations are violative of the constitution for discrimination against queer couples”.
Justice Chandrachud said that the Central Adoption Resource Authority (CARA) circular, which denies adoption rights to queer couples, is “violative of Article 15 of the Constitution”. “CARA Regulation 5(3) indirectly discriminates against 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.
“There is no material on record to prove that only a married heterosexual couple can provide stability to a child,”the CJI added. Justice Kaul also agreed with the CJI’s observations on adoption.
Justice Bhat, Justice Kohli, and Justice Narasimha disagreed with the CJI and upheld the CARA regulations which exclude queer and unmarried couples as constitutional. “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 said.
