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Synopsis

The Supreme Court of India by a three-judge majority has held today that queer couples have no right to adopt children. This view has been taken by a majority of a Constitution bench which unanimously held that legal recognition cannot be granted to same sex marriages.

Justices S Ravindra Bhat, PS Narasimha and Hima Kohli by a majority have held that queer couples do not have a right to adopt children and have expressed their concerns over the minority view taken by the Supreme Court on this aspect.

"We disagree with the CJI's view on right of queer couples to adopt and express concerns over such a view.. by this we do not mean to say that unmarried or non-heterosexual couples can't be good parents.. but 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 has said in his opinion.

Justice Narasimha has also agreed with Justice Bhat's views on CARA regulations.

CJI Chandrachud on the other hand has opined that the adoption regulations are violative of a queer person's rights.

"As per CARA rules, a person would be forced to either choose to be an adoptive parent or marry a person of their choice. This is violative of the Article 15. Unmarried couples, including queer couples can jointly adopt a child.", the CJI has said.

Earlier today, the Supreme Court of India refused to provide legal recognition to same sex marriages while further holding that no fundamental right to marry can be found under the Indian Constitution.

A five judge Constitution bench led by Chief Justice of India has left it on the Union to constitute an High Powered Committee headed by the Cabinet Secretary for this purpose to look into the aspects of queer relationships.

The Constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli has been seized with the same-sex marriage petitions since the hearing began on April 18.

Notably, the bench has recognized transgender marriages to be recognized under the laws prevailing in the country. On the aspect of Special Marriage Act and the challenge to its provisions, it has been held that they cannot be held to be unconstitutional and the court cannot read words into its provisions as well.

A Constitution bench of Supreme Court on May 11, 2023 had reserved its verdict in the plea’s seeking legal recognition of same sex marriage, after having heard the parties over ten days.

Case Title: Supriyo@ Supriya Chakraborthy vs. Union of India & Anr. (a batch of petitions)