Unmarried couples, including queer couples, can adopt child: CJI in minority verdict

Justice DY Chandrachud emphasised that parenting abilities should not be judged based on sexuality, as it perpetuates stereotypes prohibited by article 15 of the Constitution.

Chief Justice of India DY Chandrachud (photo: National Herald archives)
Chief Justice of India DY Chandrachud (photo: National Herald archives)


Unmarried couples, including queer couples, can jointly adopt a child, the Supreme Court said on Tuesday 17 October, while striking down a Central Adoption Resource Authority (CARA) regulation that allows only married couples to adopt children.

A five-judge Constitution bench of the top court on Tuesday unanimously refused to accord legal recognition to same-sex marriages under the Special Marriage Act, ruling that it is within the Parliament's ambit to change the law for validating such a union.

In a 247-page separate judgement, Chief Justice of India (CJI) DY Chandrachud struck down Regulation 5(3) of CARA, saying it is violative of the rights of the queer community and that CARA has exceeded its authority in barring unmarried couples from adopting children.

The five-judge bench, however, passed a 3:2 verdict against adoption rights for the LGBTQIA++ community.

While the CJI and Justice Sanjay Kishan Kaul opined that queer couples should be given adoption rights, Justices Ravindra Bhat, Hima Kohli and PS Narasimha did not agree.

"The law cannot 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), which is prohibited by Article 15 of the Constitution.

"This assumption is not different from the assumption that individuals of a certain class or caste or religion are 'better' parents. In view of the above observations, the adoption regulation is violative of Article 15 for discriminating against the queer community," the CJI said.

He said Regulation 5(3) is read down to exclude the word "marital".

"It is clarified that the reference to a 'couple' in Regulation 5 includes both married and unmarried couples, including queer couples. In bringing the regulations in conformity with this judgment, the CARA is at liberty to ensure that the conditions which it prescribes for a valid adoption subserve the best interest and welfare of the child.

"The welfare of the child is of paramount importance. Hence, the authorities would be at liberty to ensure that the familial circumstances provide a safe, stable and conducive environment to protect the material wellbeing and emotional sustenance of the child," the CJI said.

Justice Chandrachud said moreover, CARA may insist on conditions which would ensure that the interest of the child would be protected even if the relationship of the adoptive parents were to come to an end in the future.

"Those indicators must not discriminate against any couple based on sexual orientation. The criteria prescribed must be in tune with constitutional values. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried or queer couples who seek to jointly adopt a child," the CJI wrote.

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