The Chief Justice of India (CJI) DY Chandrachud expressed his support for queer and unmarried couples to adopt children while pronouncing the judgement in the marriage equality petitions. However, three other judges on the five-judge Bench disagreed with his views. The final judgement does not make any amendments that will allow queer couples to adopt.
Stating that the regulations enforced by Central Adoption Resource Authority (CARA), the statutory body of the Ministry of Women and Child Development, is in contradiction with the Juvenile Justice (JJ) Act, the CJI had advocated for it to be struck down. He also said, “The law cannot assume that only hetrosexual couples can be good parents. This would amount to discrimination. So the adoption regulations are violative of the Constitution’s provisions against discrimination against queer couples.”
The CJI stated that CARA has exceeded its authority by “prescribing an additional condition” that is in contradiction with the section 57 of the JJ Act. Section 5(3) of CARA’s adoption regulations mandate that couples must be married at least for two years before they can adopt a child. However, section 57 of the JJ Act, which lays down eligibility of parents for adoption, makes no mention of unmarried and/or queer couples being prevented from adopting children.
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CJI Chandrachud noted that the JJ Act does not preclude unmarried couples from adopting children. He said, “Neither the general principles guiding the JJ Act nor section 57 preclude unmarried couples from adopting. All the other criteria ensure the child’s best interests. CARA has exceeded its authority by prescribing an additional condition by way of regulation 5(3), which is contradictory to the tenure of JJ Act, and section 57 in particular. An unmarried heterosexual couple has the option to marry to meet the eligibility criteria for adoption. This option is not available to queer couples. This exclusion has the effect of reinforcing the disadvantage faced by the queer community.”
Elaborating on how the law cannot assume who will be good parents based on sexuality, the CJI said, “Such an assumption perpetuates the stereotype that only heterosexuals are good parents and others are bad, which is prohibited by Article 15 [no person can be discriminated on the grounds of religion, race, caste, sex, or place of birth]. This is not different from the assumption that people of a certain caste, class, or religion are better parents. In view of the above observation, the adoption regulation is violative of Article 15 for discriminating against the queer community.”
In this regard, he also said that adoption regulations use marriage as a yardstick to classify couples, but that this was simply a technical matter of being able to differentiate between couples who are married or unmarried. This means of classification, the CJI said, did not have a bearing on the end goal of CARA regulations, which is to ensure a safe home for the child. He also added that the Union government had not shown any data that proved that only married couples can provide stable homes. Chandrachud also said that marriage cannot be equated with stable homes solely because it is regulated by the law and that unmarried couples are not serious about their relationships.
Speaking to TNM, Bengaluru-based advocate and founder of Alternative Law Forum (ALF) Arvind Narrain said, “While speaking about the rules that prevent unmarried couples from adopting, the CJI noted that this has a disproportionate impact on queer couples because all queer couples can only be unmarried as far as the law is concerned. His argument was for this to be struck down. But the CJI stands in isolation as far as adoption rights are concerned. With the way we see this, it will have to be a battle for the future.” He further noted that the dissenting opinion expressed by the CJI will appeal to the intelligence of the future and that people will have to go back and fight for recognition of their rights.
Meanwhile, Justice S Ravindra Bhat expressed his disagreement with the CJI and said that given the objective of section 57 of the JJ Act, the government as the overarching authority has to explore all areas to ensure that benefits reach the children in need of stable homes. Justice Narasimha agreed with Justice Bhat’s views and upheld the constitutionality of CARA regulations. Justice Kaul did not touch upon the adoption rights of queer and unmarried couples.