17 Oct 2023 9:07 AM GMT
The Supreme Court today refused to grant legal recognition for queer marriages in India. The Constitution bench has pronounced four judgements– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with the view of Justice Bhat. Along with this, the Supreme Court also declined the right of adoption...
The Supreme Court today refused to grant legal recognition for queer marriages in India. The Constitution bench has pronounced four judgements– written by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with the view of Justice Bhat. Along with this, the Supreme Court also declined the right of adoption to queer couples by a 3:2 majority.
While CJI DY Chandrachud and Justice Kaul held that the Central Adoption Resource Authority (CARA) had exceeded its authority in barring unmarried and queer couples from adopting as differentia between married couples and unmarried couples had no reasonable nexus with the objective of CARA, the other three judges in the bench did not agree with the same.
The bench was considering the legality of Regulation 5(3) of the CARA Regulations for adoption. It may be noted that Regulation 5 provides for the eligibility criteria for prospective adoptive parents. Regulation 5(3) states that "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".
This regulation, as per the CJI's judgement, was in violation of Article 15 of the Constitution. The CJI held–
"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."
Both CJI and Justice Kaul held that it could not be assumed that unmarried couples were not serious about their relationship. Further, the two judges held that there was no material on record to prove that only a married heterosexual couple can provide stability to a child. Accordingly, CJI and Justice Kaul stated that Guideline 5(3) of the CARA Guidelines was unconstitutional and unmarried queer couples could adopt. The CJI stated–
"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 queer community...Law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination. So the adoption regulations are violative of the constitution for discrimination against queer couples."
"Unmarried couples, including queer couples, can jointly adopt a child," the judgment of CJI concluded. Justice Kaul also agreed with this view,
In his judgement, the Chief Justice stated that delegated legislation must remain consistent with the parent act, adhering to its boundaries and not exceeding the authority granted under it. Accordingly, the Central Adoption Resource Authority (CARA), should exercise its power within the intended purpose defined by the Juvenile Justice (JJ) Act. He then underscored the primary objectives of the JJ Act, which are to safeguard the best interests of the child and ensure their proper development. In this context, the Chief Justice expressed concern against Regulation 5(3) of the Adoption Regulations, which prohibits unmarried partners from being prospective adoptive parents jointly, meaning that unmarried couples can only adopt in their individual capacity. The CJI argued that the JJ Act does not preclude unmarried couples, including queer couples, from adopting jointly. Therefore, CARA's prescription of an additional condition, as per Regulation 5(3), was considered contrary to the spirit and letter of the JJ Act and Section 57 in particular. He also criticized the assumption made by CARA that only married heterosexual couples can provide a stable household for a child. He noted that there is no single form of a stable household, and the law should not discriminate against unmarried couples, including those from the queer community, based on their sexual orientation. This perspective aligns with Article 15 of the Indian Constitution, which prohibits discrimination based on identity. The Chief Justice argued that the lack of legal and social recognition of same-sex unions contributes to the difficulties faced by children from queer families. To rectify the situation, the Chief Justice held that Regulation 5(3) of the Adoption Regulations should be read down to exclude the word "marital." The reference to a 'couple' in Regulation 5 should encompass both married and unmarried couples, including queer couples. Additionally, the principle in Regulation 5(2)(a) mandating the consent of spouses in a marriage applies equally to unmarried couples seeking to jointly adopt a child. This view was concurred with by Justice Kaul.
Per contra, Justice Bhat penned the majority opinion on this aspect and cited the lack of a framework as a reason for not allowing queer couples to adopt. While emphasizing that a married couple is not a "morally superior choice" when it came to adoptions, Justice Bhat underlined that the adoption framework considered the protections and entitlements that flow from the institution of marriage. In this context, he stated that the guiding principle of the JJ Act was the "best interest of the child", rather than enabling adoption for all. As per his interpretation, Section 57(2) exclusively pertained to joint adoption by married couples. He explained that this law was designed to prioritize the "best interest of the child" and protect them in cases where a marriage had broken down. As per the JJ Act, adoption becomes a fundamental prerequisite for accessing legal safeguards related to divorce, custody, guardianship, maintenance, and succession. This framework ensures that if one parent abandons the relationship, the other can still maintain themselves and provide for the child, a remedy that couples without legal recognition of marriage are deprived of.
Thus, Justice Bhat asserted that the absence of legal recognition for queer couples forces them to adopt individually, resulting in a lack of legal protections for both parents and the child. He argued that the state had an urgent need to grant the full range of rights to queer parents and children. In his view, it is crucial for the state to ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes, promoting their fullest development.
This was concurred with Justice Kohli and Justice Narasimha.
Other reports about the judgment can be read here.
Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022 + connected matters
Citation : 2023 LiveLaw (SC) 900
Click here to read the judgment