Excerpt from the judgment of Justice Ravindra Bhat in Same-Sex Marriage Case
Issue of joint adoption by queer couples
Some of the petitioners have challenged Regulation 5(3) of the 2020 CARA Regulations. By Section 57(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereafter ‘JJ Act’), consent of both the spouses for adoption is necessary (“shall be required”). By Section 57(5), the authority is enabled to frame any other criteria. CARA notified regulations in furtherance of Section 57(3) which inter alia mandates as a prerequisite that the prospective adopting couple should have been in a stable marital relationship for at least 2 years.
The petitioners argued that these regulations relating to adoption were ultra vires the parent enactment – the JJ Act, and arbitrary for classifying couples on the basis of marital status, for the purpose of joint adoption. We have perused the reasoning and conclusion by the learned Chief Justice on this aspect, and are unable to concur.
The interpretation placed on Section 57(2) of the JJ Act by the learned Chief Justice, is that it contemplates (joint) adoption by both married and unmarried couples, but the condition requiring both spouses to consent applies only to married couples. Therefore, while the JJ Act is wider in its scope, the CARA Regulation 5(3) [in furtherance of Section 57(5) which delegates power to prescribe any other criteria] stipulating a ‘stable marital relationship’ exceeds the power granted by the parent Act, and is ultra vires the express provisions and legislative policy of the JJ Act.
Our disagreement with this characterization is laid out in Part A below. Thereafter, the learned Chief Justice has read down offending part ‘marital’ from Regulation 5(3), and held that the requirement of ‘consent’ embodied in Regulation 5(2)(a) would be equally applicable on both married and unmarried couples. We are of the firm opinion that the exercise of reading down itself, is unsustainable [See part B below] and hence, this consequence though favourable, cannot apply. Our reasoning in relation to the aspect of adoption by queer couples, and the indirect discrimination faced, is elaborated in Part C.
A. Not a case of delegated legislation being ultra vires the parent Act
With respect, we disagree with the interpretation of Section 57(2) of the JJ Act itself. A reading of the provision as a whole, makes it amply clear that it intends joint adoption only to married couples. While the word “couple” is not preceded by ‘married’, the use of “spouse” later in the sentence, rules out any other interpretation. The principle of noscitur a sociis (meaning of a word should be known from its accompanying or associating words) is squarely applicable; a provision is to be seen as a whole, wherein words are to be read in the context of accompanying or associating words.
Furthermore, such an interpretation – of construing a part of one provision as operating to one set of people, and not others, is simply not known to law. To read Section 57(2) as enabling both married and unmarried couples to adopt, but that the statutory provision contemplates a restriction or requirement of ‘consent’ only on the former kind of couple is not based on any known principle of interpretation.
There is a strong legislative purpose in the requirement of obtaining consent of the spouse, which is rooted in the best interest of the child; for their welfare, and security. The parent Act, and delegated legislation, both are clear that a prospective adoptive parent can be a single person (whether unmarried, widower, etc.) and on them, there exists no restriction other than on a single male being barred from adopting a girl child.
The restriction of ‘consent’ of partner, applies only in the case of a couple. This is because the child will enter into a family unit – consisting of two parents, as a result of the adoption and will in reality, enjoy the home that is made of both partners. Acceptance, therefore, of the other partner, is imperative; it would not be in the best interest of the child if one of the partners was unwilling to take on the responsibility. The only other legislative model is Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956 which mandates consent of both spouses (which much like other personal laws, uses the gendered language of “wife” and “husband”).
Therefore, given that we differ on the starting point itself – that section 57(2) of the JJ Act permits joint adoption by both married and unmarried couples (as held by the learned Chief Justice) – we are of the considered opinion that is not a case of delegated legislation being ultra vires the parent Act.
The legislative choice, of limiting joint adoption only to married couples needs to be understood in the broader context of the JJ Act, and its purpose – which is the best interest of the child are paramount. Legal benefits and entitlements, flow either from/in relation to the individual adopting (when a single person adopts), or the married couple adopting as a unit.
In the case of bereavement, of such single parent, custody of the child may be taken by a relative in the former, whereas continued by the surviving spouse, in the latter. But consider, that in the case of a married couple – there is a breakdown of marriage, or simply abandonment/neglect of one partner and the child, by the other.
There are protections in the law, as they stand today, that enable such deserted, or neglected spouse, to receive as a matter of statutory right – maintenance, and access to other protections. Undoubtedly, the DV Act offers this protection even to those in an unmarried live-in relationship, but consider a situation that does not involve domestic violence, and is plain and simple a case of neglect, or worse, desertion.
It is arguable that both partners, are equally responsible for the child after the factum of adoption; however – it begs the question, how can one enforce the protection that is due to this child?
The JJ Act merely enables adoption, but for all other consequences (i.e., relating to the rights of a child qua their parents, and in turn obligations of a parent towards the said child) reference has to be made to prevailing law (law relating to marriage and divorce, maintenance, succession, guardianship, custody, etc.).
When a single person adopts as an individual, their capabilities are assessed as per Section 57(1) [and Regulation 5(1)], and the responsibility of that child – falls squarely on this individual. If that person enters into a relationship, whether it later succeeds, or fails, is immaterial – the responsibility of the child remains squarely on the individual (until they are married, and the partner legally adopts the child).
When a couple adopts, they are jointly assessed, and in law, the responsibility falls on both parents. If one parent was to abandon the relationship, and the other parent is unable to maintain themselves or the child by themselves– recourse lies in other statutory provisions which enable remedy to be sought.
To read the law in the manner adopted by the learned Chief Justice, with all due respect, would have disastrous outcomes, because the ecosystem of law as it exists, would be unable to guarantee protection to the said child in the case of breakdown of an unmarried couple, adopting jointly. This, therefore, would not be in the best interest of the child.
Not a case for reading down or other interpretive construction
Counsel relied on the case of X v. Principal Secretary where this court read down ‘married woman’ to just ‘woman’ for the purpose of interpretating the MTPA Act, to argue that a similar interpretation be adopted for the law relating to adoption. In our considered opinion, that case was on a different footing altogether – it related to an individual woman’s right to choice and privacy, affecting her bodily autonomy.
Given the fundamental right that each childbearing individual has, and the objective of the Act, the classification on the basis of marital status, was wholly arbitrary. The JJ Act and its regulations are on a different footing. Here, the object of the Act and guiding principle, is the best interest of the child (and not to enable adoption for all).
It is agreeable that all marriages may not provide a stable home, and that a couple tied together in marriage are not a ‘morally superior choice’, or per se make better parents. Undoubtedly, what children require is a safe space, love, care, and commitment – which is also possible by an individual by themselves, or a couple– married or unmarried.
There is no formula for a guaranteed stable household. Principally, these are all conclusions we do not differ with. As a society, and in the law, we have come a long way from the limited conception of a nuclear family with gendered roles, and privileging this conception of family over other ‘atypical’ families.
However, the fact that Parliament has made the legislative choice of including only ‘married’ couples for joint adoption (i.e., where two parents are legally responsible), arises from the reality of all other laws wherein protections and entitlements, flow from the institution of marriage. To read down ‘marital’ status as proposed, may have deleterious impacts, that only the legislature and executive, could remedy – making this, much like the discussion on interpretation of SMA, an outcome that cannot be achieved by the judicial pen.
Having said this, however, there is a discriminatory impact on queer couples, perhaps most visible through this example of adoption and its regulation, that requires urgent state intervention (elaborated in Part C).
Furthermore, the previous analysis of SMA has led this Court to conclude that its provisions cannot be modified through any process of interpretation and that the expression “spouse” means husband and wife or a male and female as the case may be, on an overall reading of its various provisions. By Section 2(64) of the JJ Act, expressions not defined in that Act have the same meanings as defined in other enactments.
The SMA is one example. Likewise, the other enacted laws with respect to adoption is the Hindu Adoption and Maintenance Act. That contains the expression “wife and husband”. In these circumstances, we are of the opinion that the manner in which Section 57(2) is cast, necessitating the existence of both spouse and their consent for adoption of a child. In such a relationship, Regulation 5(3) cannot be read down in the manner suggested by the learned Chief Justice.
Therefore, in our opinion, whilst the argument of the petitioners is merited on some counts, at the same time, the reading down of the provision as sought for would result in the anomalous outcome that heterosexual couples who live together, but choose not to marry, may adopt a child together and would now be indirect beneficiaries, without the legal protection that other statutes offer – making it unworkable (much like the discussion on SMA in Part V).
C. Discriminatory impact of adoption regulations on queer persons
Section 57(2) of that Act spells out the eligibility conditions of prospective adoptive parents. The petitioner’s argument was that the expression “marital” results in discrimination inasmuch as single parent can adopt – the only prohibition being that a single man cannot adopt a girl child.
Further, if a single man and/or a single woman choose to adopt separately as an individual, and live together, the resultant de facto parents would still have a choice of marrying each other – for the child in question to be legally the child of both parents.
Or put differently, if a heterosexual couple wants to adopt a child jointly, they have the option of entering into a marriage, thereby making them eligible for joint adoption. However, in the absence of legal recognition of a queer couple union, they are left to adopt as individuals and the resultant de facto family would have no avenue for legal recognition.
This iniquitous result too is an aspect which needs to be addressed as the impact here is not only on the queer couple (who have no avenue to seek legal recognition of their union) but also upon the children adopted by them (who have no say in the matter).
Furthermore, given the social reality that queer couples are having to adopt in law as individuals, but are residing together and for all purposes raising these children together – means that the State arguably has an even more urgent need to enable the full gamut of rights to such children, qua both parents.
For instance, in an unforeseen circumstance of death of the partner who adopted the child as an individual, the child in question may well become the ward of such deceased’s relatives, who might (or might not) even be known to the child, whereas the surviving partner who has been a parent to the child for all purposes, is left a stranger in the law. Therefore, this is yet another consequence of the non-recognition of queer unions, that the State has to address and eliminate, by appropriate mitigating measures.
This is not to say that unmarried couples – whether queer or heterosexual– are not capable or suitable, to be adoptive parents. However, once the law permits, as it has done – adoption by both single individuals, the likelihood of their joining and co-habiting cannot be ruled out. In such event, de facto family unit can and do come about.
The underlying assumption in the law as it exists, that such unmarried heterosexual or queer couples should not adopt needs to be closely examined. Similarly, the need of such couples to have and raise a family in every sense of the term, has to be accommodated within the framework of the law, subject to the best interests of the child.
The existing state of affairs which permits single individuals to adopt, and later to live as a couple in due exercise of their choice, in effect deprives the children of such relationships various legal and social benefits, which are otherwise available to children of a married couple.
In other words, given the objective of Section 57 and other allied provisions of the JJ Act, which is beneficial for children, the State as parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes with a promise for their fullest development. This aspect is extremely important given that a large number of children remain neglected, or orphaned.
It goes without saying that the welfare and the benefit of the children is paramount in every case, and the State has the duty to act as parens patriae. That our country has countless children who are orphaned or neglected, and in need of loving homes, is not lost on us – and is certainly a concern that the State is most acutely aware of.
In these circumstances, it would be in the general interest of all children that such impact is removed at the earliest instance, after undertaking in-depth study and analysis of the various permutations and combinations that would arise in opening adoption more widely, without hampering the child’s rights. In its exercise of reframing the regulations or laws, it is reiterated that the State cannot, on any account, make regulations that are facially or indirectly discriminatory on the ground of sexual orientation.
It would be entirely wrong, if the observations herein, are construed as saying that the State should hamper or interfere in queer persons who have in the past, or are seeking to adopt as individuals. These observations are to be construed to enable the state to consider all options, and implications, with the object of promoting the best welfare of children, especially whether joint adoption can be facilitated to such willing couples, even while ensuring that the legal web of statutory protections and entitlements guaranteed to children, are operationalised for these children as well.
These observations are not meant to impede all possibilities and make all necessary policy and legislative changes, enabling children’s welfare. In other words, the possibility of queer couples adopting children, should be given equal concern and consideration having regard to the larger interest of the largest number of children and their development.
The breadth and amplitude of this court’s jurisdiction is incontestable. The constitution framers created this as a fundamental right in most emphatic terms. This jurisdiction enables the court to create and fashion remedies suited for the occasion, oftentimes unconstrained by previous decisions.
Yet the breadth of this power is restrained by the awareness that it is in essence judicial. The court may feel the wisdom of a measure or norm that is lacking; nevertheless, its role is not to venture into functions which the constitution has authorised other departments and organs to discharge.
Does the existence of such discriminatory impacts, in these intersections with the state, and arising out of a variety of regulations and laws, impel this court to fashion a remedy, such as a declaration, which enjoin legislative activity, or instruct the executive to act in a specified manner, i.e., achieving non-heterosexual couple marriage? This aspect cannot be viewed in isolation, but in the context of our constitution’s entrenchment of separation of powers, which according to Kesavananda Bharati, Indira Gandhi and other judgments constitutes an essential feature of the Constitution.
It is one thing for this court, to commend to the state, to eliminate the discriminatory impact of the intersections with laws and publicly administered policies and institutions, upon non-heterosexual couples, and entirely another, to indirectly hold that through a conflation of positive obligations cast on the State, that such individuals’ right to choice to cohabit and form abiding relationships, extends to the right (or some entitlement) to a legally recognised union that must be actualized by State policy/legislation.
The petitioners relied on three judgments specifically, to argue that this court could issue directions, to fill the legal lacunae: Common Cause, Vishaka & Ors v. State of Rajasthan and NALSA. We have briefly summarized why these were in a context different from the case before us.
In Common Cause, the court elaborated on the theme of liberty under Article 21 of the Constitution and the façade of dignity inherent in it. The Court relied on Port of Bombay v. Dilipkumar Raghavendranath Nadkarni , Maneka Gandhi, and State of A.P. v. Challa Ramkrishna Reddy . The court also relied on K.S. Puttaswamy, NALSA and Shabnam v. Union of India to underline the intrinsic value of dignity and further stated that life is not confined to the integrity of physical body. Having said that, the Court formulated the right under Article 21 to include the right to die with dignity, of a dying or terminally ill person and approved the application of only passive euthanasia.
The approach of Common Cause as can be seen from the varied opinions of the Judges forming the Bench was one of seeing the workability and the need to elaborate guidelines formulated in Aruna Shanbaug. The Court had no occasion, really speaking, but to consider whether the directions given could not have been given.
Furthermore, there were reports in the form of Law Commission recommendations which formed additional basis for the Court’s discretion and the final guidelines. An important aspect is that all judgments in Common Cause located the right to passive euthanasia premising upon the right to human dignity, autonomy and liberty under Article 21.
Vishaka was an instance where in every sense of the term, there was all round cooperation as is evident from the position taken by the Union of India which had expressly indicated that guidelines ought to be formulated by the Court.
The trigger for these guidelines was the resolve that gender equality (manifested in Articles 14 and 15 of the Constitution as well as the right to dignity) and the right to pursue one’s profession and employment [Article 19(1)(g)] needed some express recognition to ensure protection from sexual harassment in the workplace and to work with dignity, is a basic human right which needed to be addressed in the context of women at workplace.
Central to the idea of issuing directions or guidelines in Vishaka (supra) was the felt need to address a living concern – that of providing redressal against socially repressible conduct suffered by women in the course of employment. The Court stepped in, so to say, to regulate this behaviour in public places, which though not criminalized or outlawed (other than in the limited context of Section 354 IPC) actually tended towards criminal behaviour.
The Court articulated the constitutional vision for bringing about gender parity and to that end, elimination of practices which tended to lower the dignity and worth of women through unacceptable behaviour. Guided by Article 15(3), the court stepped in, while limiting itself to regulate workplaces essential in the public field (State or State agencies). The Union of India was actively involved and in fact had given suggestions, at the time of formulation of these guidelines.
In NALSA, the Court again was confronted with an acute concern wherein the personhood of transgender persons itself, was not recognized. The court held that the intrinsic worth of every individual and the value of individuals to fully realise their rights, was a premise embedded in the Constitution. The Court sought to address hostile discriminatory practices, which included violence that transgender persons were subjected to routinely. Given all these circumstances, the Court located the right of those identifying themselves as transgender persons squarely under Article 21 of the Constitution.
Any discriminatory practice against such persons, would violate their Article 15 right under the Constitution. The directions given by the Court were that such persons should be treated as third gender, where appropriate, and granted legal protection to their self-identified gender identity.
Further, that the State and Central Government should seriously address problems faced by them by providing measures for medical care and facilities in hospitals, permitting them access to social welfare schemes for their betterment and take other measures. The court also constituted an expert committee to make an in-depth study of problems faced by transgender persons.
In the present case, however, the approach adopted in the above three cases would not be suitable. The court would have to fashion a parallel legal regime, comprising of defined entitlements and obligations. Furthermore, such framework containing obligations would cast responsibilities upon private citizens and not merely the State. The learned Chief Justice’s conclusions also do not point towards directions of the kind contemplated in Vishaka (supra).
However, the outlining of a bouquet of rights and indication that there is a separate constitutional right to union enjoyed by queer couples, with the concomitant obligation on the State to accord recognition to such union, is what we take exception to.
Supriya @Supriyo & oth. v. Union of India (2023)
 Indira Nehru Gandhi v. Raj Narain, (1975) Supp. SCC 1
 (1983) 1 SCR 828
 (2000) 3 SCR 644
 (2015) 8 SCC 289
 Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCR 1057