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 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,
Per contra, Justice Bhat, Justice Kohli, and Justice Narasimha disagreed with the CJI and upheld the CARA regulations which exclude queer and unmarried couples as constitutional. Justice Bhat stated–
"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."
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