UNIVERSITY OF PETROLEUM & ENERGY STUDIES

SCHOOL OF LAW

B.A., LL.B. (HONS.) 

SEMESTER V

ACADEMIC YEAR: 2020-2021 SESSION: JULY-DEC, 2021

ASSIGNMENT 

FOR

Family Law I
Under the Supervision of:   Ms. Nandini Biswas

(TO BE FILLED BY THE STUDENT)

SUBMITTED BY

SNEHAL UPADHYAY; 500076776

 ADOPTION BY SAME-SEX COUPLE IN INDIA

INTRODUCTION

India has a LGBTQIA+ population of 2.5 million as per government estimate data. Despite the
fact that the strength of the community is colossal in number, it has consistently been a survivor
of social shame and segregation. The decriminalization of the stringent Section 377 of 2018 was
broadly celebrated and seen as a beam of expectation for elevating the state of the community in
Indian culture. However, even after two years, the community battles for its essential freedoms
like marriage and adoption. In 2019, a review plea in sought for marriage, adoption and
surrogacy freedoms of the community was quashed by the Supreme Court. While there is no bar
on adoption by the single individuals of the community, the rule that everyone must follow is
unconducive to adoption by same-sex couples. Despite the fact that one of the two accomplices
of the equivalent sex couple can take on as a solitary parent under existing laws, this denies the
other accomplice of any legitimate directly over the kid.

As indicated by a review by UNICEF said that there are 29.6 million stranded and deserted
youngsters in India and it’s a country with a disconcertingly low adoption rate. Nonetheless, the
willing same-sex couples are as yet denied of their adoption privileges in the country.

ADOPTION LAWS IN INDIA

Section 2(2) of Juvenile Justice (Care and Protection of Children) Act, 2015 defines adoption as
“Adoption means the process through which the adopted child is permanently separated from
his biological parents and becomes the lawful child of the adoptive parents with all the rights,
privileges and responsibilities that are attached to a biological child.”

Adoption in India is governed under the Hindu Adoptions and Maintenance Act, 1956
["HAMA"] and the JJ Act. Under HAMA, adoption can be undertaken by Hindus, Buddhists,
Jains, Sikhs and other religions administered by Hindu Law. While expressing the ambit of
Section 7 and 8 of HAMA with regards to adoption, mentions the words "husband" and "wife"
which simply indicates that the act doesn't perceive adoption by same-sex couples. Additionally,
the laws talk about adoption for Hindu males and Hindu females and therefore, there is no
mention for the adoption rights for third-sex couples.

The JJ Act opens the choice of adoption to any individual regardless of their religion, with the
standards being through the Central Adoption Resource Authority ("CARA"). CARA is the most
important controlling body in respect to adoption matters under the Ministry of Women and
Child Development and has outlined the Adoption Regulations, 2017("AR") which sets out the
standards and rules for adoption programs in the country. The qualification of imminent new
parents ("PAPs") is talked about under Section 57 of the JJ Act and Regulation 5 of AR. One of
the prerequisites expresses that "no child will be given in adoption to a couple except if they
have something like two years of stable conjugal relationship". Since same-sex marriages are yet
to be perceived in India, it isn't workable for same-sex couples to set up two years of stable
conjugal relationship and this renders them ineligible to be PAPs. In addition, the cultural shame
associated with such sort of connections further deters the specialists from giving adoption to
such couples.

CURRENT STATUS OF SAME SEX COUPLE

After Navtej Singh's judgment1, Section 377 of the Indian Penal Code got decriminalized, earlier
consensual same sex couple relationship was seen as an offence but after following the Court’s
judgement it was no more seen as an offence. In any case, the battle for legitimate and social
acknowledgment is still going on. This is on the grounds that they don't have the advantage to
essential social equality like marriage, maintenance, adoption, succession, and other economic
benefit schemes available only to married couples. While deciding the Navtej case, Justice
Chandrachud stated “Constitutional morality requires that all the citizens need to have a closer
look at, understand and imbibe the broad values of the Constitution, which are based on liberty,
equality and fraternity.”

By this, the Court remarked that individuals from the LGBTQ community would get equal
constitutional rights. Additionally, there's an extension for escalating their social equality later

1
Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
on. However at this point we can see evidently that the laws are yet discriminatory and deprives
them from, family rights. Recently, the Center also opposed the PIL2 for same-sex marriage, by
expressing and stressing upon the definition of marriage as a social institution and basically a
socially perceived union of two persons, socially accepted and regulated either by uncodified
personal rules or codified statutory laws. Be that as it may, same-sex marriage is neither
perceived nor accepted in any uncodified personal law or any codified formal law.

CONSTITUTIONAL PERSEPECTIVE

The above stated acts are violative of Articles 14, 15 and 21 of the Constitution of India. Article
14 ensures the right to equality before law and equal protection of law to each and every citizen
of India. It is a fundamental right which is the part of the basic structure of the Constitution.
Article 14 intents to strike arbitrariness in state action in light of the fact that any discretionary
activities should essentially involve invalidation of correspondence. The discrimination between
the married and unmarried couples for the purpose of adoption doesn't breeze through the
grouping assessment and is discretionary as order is unjust, unfair and unreasonable in nature.
Moreover, there is no normal nexus which can be accomplished by discrimination between
various sex and same-sex couples based on their sexual orientation as there is no proof to show
that same-sex couples are in any manner inferior in parenting when contrasted with various sex
couples.

Article 15 proscribes discrimination based on "sex" which includes discrimination on grounds of

sexual orientation as set down for the case of National Legal Services Authority v. Union of
India3. Therefore, the right of adoption of the same-sex couples is guaranteed under Article 15 as
no discrimination can be made against them on the basis of their sexual orientation and they
should be acknowledged with adoption rights like distinctive sex couples.

Article 21 secures life and individual freedom which includes the right to live with pride as set
down in K.S Puttaswamy v UOI 4. In the case of Navtej Singh v UOI, the court alluded to a
2
Abhijeet Iyer Mitra v. Union of India, WP (C) No. 6371/2020 & CM Appl. No. 22554/2020.
3
Writ Petition (civil) No. 604 of 2013
4
(2017) 10 SCC 1
Canadian case which expressed that human poise is hurt when unfair treatment is allotted
dependent on personal traits or circumstances which don't identify with individual requirements,
limits, or merits. It was likewise held that the LGBT people group has the same human,
fundamental and constitutional rights as other residents do as these rights are inherent normal
and basic freedoms and individuals of the LGBT community ought not be given advance
motherly treatment on the affection of social morality. The disentitlement of reception by same-
sex couples hurts the nobility of individuals from the community as it depends on their sexual
orientation which doesn't identify with their ability or legitimacy as imminent parent.

INDIAN LAWS AND DEMAND FOR ADOPTION RIGHTS FOR SAME SEX
COUPLE

As mentioned above in India, adoption is dealt under the Hindu Adoption and Maintenance Act,
1956, the Guardianship and Wards Act, 1980, and the Juvenile Justice (care and protection of
children) Act, 2000.

Under Hindu Adoption and Maintenance Act, 1956,the married couples or single male or a
single female is designated to adopt, administered by Hindu laws, Further, those from other
religions, similar to Muslims, Christians, Parsis, and Jews, can become guardians under the
Guardianship and Wards Act, 1980.

With regards to the Juvenile Justice (care and protection of children) Act, 2015, one can embrace
independent of religion. Provisions for the same are laid in Adoption Regulations, 2017, outlined
by Central Adoption Resource Authority ("CARA"), a statutory body under the Ministry of
Women and Child Development. This law doesn't deliberatively disallow individuals of same-
sex from adopting. In any case, it makes just wedded couples having at least two years of stable
conjugal relationship qualified for adoption.

Obvious from these regulations, marriage is an essential for adoption in many cases.
Nonetheless, since laws don't state anything about same-sex marriage and the Center is
disinclined to acknowledge same-sex marriage, it's an undertaking for such couples to embrace.
The main choice they have then is adopting under one of the accomplice's names. The same
could further intricate matters related to authority and maintenance. There's no proof to show that
same-sex couples are in any manner inferior in parenting to heterosexual couples. Actually,
ongoing examination has indicated that children raised by same-sex couples are probably going
to outperform children raised by heterosexual couples at an academic level.

The reason for adoption is for children to get a genial climate and family, which takes into
account their enthusiastic and actual development. Therefore, the main worry here ought to be in
the event that the kid will get a solid climate or not. The fundamental necessity for any kid is to
have loving guardians independent of their sex.

CONCLUSION

Adoption by same-sex couples is now permitted in nations like Spain, Belgium, Spain, and so on
India is a country which has decriminalized homosexuality in 2018 and the rights of the
LGBTQIA+ have been perceived as of late. It must be noticed that both the acts governing
adoption came into force at when homosexuality was criminalized. Since the position has been
legitimately changed now, there is a necessity for realization of the rights of the local area and a
treatment which is equivalent to that of the heterosexual section of the general public.
Sensitization programs should be urged by the legislatures to eradicate the legends and the
cultural disgrace revolving around the way of life and relationships of individuals from the local
area.

The Navtej Singh Johar judgment was a major advance towards upliftment of the situation of the
LGBTQ community in the general public yet at the same time a ton is needed to be finished by
both the legal executive and the legislature. The state ought authorize the same-sex marriages,
yet it ought to likewise change the existing laws to give legitimate acknowledgment to adoption
by same-sex couples.