The Supreme Court, hearing a clutch of pleas seeking legal validation for same-sex marriage, Wednesday said an individual in a homosexual relationship is not precluded from adopting a child under the law irrespective of marital status.
A five-judge constitution bench headed by Chief Justice D Y Chandrachud posed several queries to the child rights body, NCPCR, and Central Adoption Resource Authority (CARA), a statutory body of the Ministry of Women and Child Development, on the contours of the right of an individual to adopt a child.
The queries of the top court, which is likely to reserve its verdict on the pleas on Thursday, assume significance in the wake of vehement submissions by Additional Solicitor General Aishwarya Bhati, appearing for the National Commission for Protection of Child Rights (NCPCR) and CARA, that the welfare of the child to be given in adoption is paramount and can be granted to heterosexual couples only as the concept of gender may be “fluid” but not the mother.
“The law does recognise that you can adopt for variety of reasons. You may adopt even though you are capable of biological birth. You can adopt if you do not want to go for biological birth. There is no compulsion to have biological children. So, therefore the law does recognise the fact that there may be situations within this ideal of cohabiting family with father and mother of heterosexual gender...,” said the court.
The bench also comprises Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
“What we are asking you (CARA and NCPCR) really is something slightly different which is....nonetheless our law recognises the right of a single individual to adopt.
"And the question, therefore is whether the right of a single individual to adopt is not affected by the relationship which the single individual may otherwise have whether he/she is in a live-in relationship which is heterosexual or in a live-in relationship of the same sex so long as you are adopting as a single individual?” the bench asked. To this the law officer replied in the affirmative.
“An individual in a same-sex relationship is not precluded from adopting a child. We take that as CARA’s position,” the bench said.
Senior advocate A M Singhvi, appearing for one of the petitioners, said he was seeking enforcement of the right of marriage equality and it is quite workable under the present legal regime.
The bench asked whether he was seeking a declaration that the marriage between two heterosexuals is invalid under the Special Marriage Act (SMA) if it does not recognise same-sex marriage.
“Your argument is that any notion of marriage as a social institution which excludes same-sex couples would be violative of the constitution preset. Their argument is that marriage is conventionally understood as a heterosexual union. You are saying that in order to make it constitutionally compliant, read that social institution as also having within its fold same-sex unions. That's very different from what we did in the Navtej Johar judgement (decriminalising the gay sex),” it said.
Even if the petitioners are compelled to challenge the validity of the SMA, that would be postulated on the hypothesis that any statutory recognition of marriage as being confined to heterosexual men and women is unconstitutional, the bench said.
“What you would then seek is expansion by the court of the notion of marriage so as to include class other than heterosexuals. That exactly is the problem. The court in process of reading down a statute would expand the statute.
“Can we go down that far and say that look the very social institution of marriage as including a relationship only between a man and woman is unconstitutional. Even you won't take it that far,” the bench said.
The bench, which was hearing the submissions for the ninth day on the pleas seeking the top court's ratification of same-sex marriage, was told by the Centre that it has received responses from seven states on the issue.
Solicitor General Tushar Mehta, appearing for the Centre, said the governments of Rajasthan, Andhra Pradesh and Assam have opposed the petitioners' contention seeking legal validation for such wedlock.
He also referred to Tuesday’s observations of the top court that it may issue a declaration on the right to marriage of same-sex couples.
The top law officer said this may not be a “correct course of action” as the court would not be able to foresee, envisage, comprehend and thereafter deal with the fallout of that constitutional declaration.
“We are all presuming that the declaration will be in the form of a writ that grant this or grant that. This is what we are accustomed to. What I was hinting was, as a constitutional court, we recognise only a state of affairs and draw the limit there,” the bench said when the law officer expressed apprehension that people like priests and pastors may be booked for contempt for not obeying the declaration.
The law officer said a declaration by the apex court on same sex-marriage will have the force of law and, if a priest, pastor or any religious leader refuses to acknowledge that, they may be booked for contempt of court.
The bench, meanwhile, trashed a plea seeking recusal of the CJI from hearing the pleas seeking legal validation for same-sex marriages.
At the outset, Bhati highlighted the legal position in different statutes that the welfare of a child is paramount
“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 heterosexual and homosexuals differently,” she said, adding the “welfare of children is paramount”.
The bench said there is no issue with the proposition that the welfare of a child is paramount. She said the law and the entire regulations have provided that children must have heterosexual parents.
The bench said law does recognise that one can adopt a child irrespective of marital status and asked, “What happens to suppose during the tenure of the heterosexual marriage one of the spouses dies the other spouse assumes the character of the father or the mother depending upon as to who dies?”
It asked whether a right to adopt, which is otherwise available to an individual, is taken away because that person is in a relationship other than a heterosexual marriage. “If two people are in live-in relationship, does that mean that because they are in a live-in relationship they will not have the right to adopt?” it asked.
The law officer said if a heterosexual couple is in a live-in relationship, one of them can certainly adopt. “We can recognise two points which you have made, one if a couple wants to adopt a child, then our adoption regulatory regime only recognises the right to adopt when you are in a heterosexual relationship. We understand that .. if you have to be a couple, then you must be in a heterosexual marriage before you both can adopt a child as couple,” the bench said. The court will resume the hearing on Thursday.
(With inputs from PTI)
Also Read: 'No absolute concept of man or woman based on genitals': SC on same-sex marriages
