Published On: Tue, Oct 17th, 2023

No adoption rights for queer people: SC

New Delhi: The Supreme Court of India, while pronouncing its verdict on a series of petitions seeking regularisation of same-sex marriage, denied adoption rights to queer unmarried couples on Tuesday.

Justices Hima Kohli and PS Narasimha also disagreed with CJI Chandrachud

The five-judge bench passed a 3:2 verdict against adoption rights for the LGBTQIA community. While Chief Justice DY Chandrachud and Justice Sanjay Kishan Kaul asserted that queer couples should be given adoption rights, Justices Ravindra Bhat, Hima Kohli, and PS Narasimha disagreed.

“Law cannot assume that only heterosexual couples can be good parents,” Justice DY Chandrachud observed while pronouncing the verdict on same-sex marriage, adding that the current “adoption regulations are violative of the constitution for discrimination against queer couples”.

He 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,” Justice Chandrachud added. Justice Kaul also agreed with the Chief Justice’s observations on adoption.

Justice Bhat, disagreeing with the CJI, said though he agrees that unmarried queer couples can be as good at parenting as heterosexual couples, there are certain concerns that need to be addressed.

“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.

Justices Hima Kohli and PS Narasimha also disagreed with CJI Chandrachud, leading to the 3:2 verdict.

The Supreme Court, ruling against legalising same-sex marriage, said that the central government will be constituting a committee to decide the rights and entitlements of persons in queer unions.

The committee shall consider including queer couples as family in ration cards, enabling queer couples to nominate for joint bank account, rights flowing from pension, gratuity etc., the court added.

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