Same-Sex Marriage: Indian Laws Permit Individual To Adopt Child, Says Supreme Court

On Wednesday, the Supreme Court said that Indian laws permit an individual to adopt a child irrespective of marital status while asserting that the law recognizes there may be situations apart from an ‘ideal family’ that has its own biological children.

In its brief to the Supreme Court, which is hearing pleas seeking legal recognition for same-sex marriages, child rights body NCPCR claimed while the concept of gender may be “fluid” mother and motherhood are not.

The National Commission for Protection of Child Rights (NCPCR) told a five-judge Constitution bench headed by Chief Justice D Y Chandrachud that the adoption of a child is not a fundamental right, citing the legal position in various statutes that the welfare of a child is paramount.

Additional Solicitor General Aishwaraya Bhati, appearing for NCPCR and others, told the bench, “Entire architecture of our laws is to protect the interest and the welfare of children who are naturally born to heterosexual persons and the State is justified in treating heterosexuals and homosexuals differently”.

Aishwaraya Bhati said that the welfare of children is paramount.

The bench, which also included Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha, stated that there is no problem with the concept that the child’s welfare comes first.

According to the Chief Justice of India, our laws understand that you can adopt for a variety of reasons.

The Chief Justice of India said, “Even a single individual can adopt a child. He or she may be in a single-sex relationship. You can adopt even if you are capable of biological birth. There is no compulsion of having biological birth”.

The bench of SC asked, “Law recognizes that there may be situations apart from this ‘ideal family’ having their own biological children. What happens during the pendency of heterosexual marriage and one spouse dies”.

The batch is hearing a bundle of petitions seeking legal recognition for same-sex marriage on the ninth day.

On Tuesday, the Supreme Court stated that it has to be alive to the fact that the concept of marriage has evolved and must accept the basic proposition that marriage itself is entitled to constitutional protection as it is not just a matter of statutory recognition.

Supreme Court said, “It would be ‘far-fetched’ to argue there is no right to marry under the Constitution, which itself is a tradition breaker”.

On Tuesday, appearing for the ‘Jamiat-Ulama-i-Hind’, a body of Islamic scholars, Senior advocate Kapil Sibal told the bench that it was a “very dangerous proposition” of the petitioners that the top court should make a declaration about legal validation for same-sex marriage as Parliament is not likely to do anything about it.

Mr. Sibal further said, “I am afraid that is a very dangerous proposition. It was said at the outset that we (petitioners) don’t expect Parliament to move forward, don’t expect Parliament to pass such a law, and therefore, your lordships should do it. I say that is a very dangerous route to take”.

(With input from PTI)

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