Excerpt from the Judgment of Justice DY Chandrachud in Marriage Equality Case
Challenge to the Adoption Regulations
The Juvenile Justice Act was enacted to consolidate and amend the law catering to the basic needs of children. Chapter VIII (Sections 56 to 73) deals with the provisions relating to adoption.
Section 2(49) of the JJ Act defines “prospective adoptive parents” to mean a person or persons eligible to adopt a child according to the provisions of Section 57.
Section 57 prescribes the eligibility criteria for prospective adoptive parents:
“57. Eligibility of prospective adoptive parents.—
(1) The prospective adoptive parents shall be physically fit, financially sound, mentally alert and highly motivated to adopt a child for providing a good upbringing to him.
(2) In case of a couple, the consent of both the spouses for the adoption shall be required.
(3) A single or divorced person can also adopt, subject to fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.
(4) A single male is not eligible to adopt a girl child.
(5) Any other criteria that may be specified in the adoption regulations framed by the Authority.”
Section 57(1) prescribes general conditions to do with the physical, mental, and financial well-being of the prospective parents as well as their motivations. Sub-Section (2) states that the consent of both the parties is required if a couple is adopting a child. Sub-Sections (3) and (4) of Section 57 state that single and divorced persons are not precluded from adopting. The only restriction is that a single male cannot adopt a girl child.
The Ministry of Women and Child Development notified the Regulations framed by the Central Adoption Resource Authority in exercise of the powers conferred under Section 68(c) read with Section 2(3) of the JJ Act.
Regulation 5 of the Adoption Regulations prescribes the eligibility criteria for prospective adoptive parents. The relevant portion of the provision is extracted below for reference:
“5. Eligibility criteria for prospective adoptive parents.―
(1)The prospective adoptive parents shall be physically, mentally, emotionally and financially capable, they shall not have any life threatening medical condition and they should not have been convicted in criminal act of any nature or accused in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective of their marital status and whether or not they have biological son or daughter, can adopt a child subject to the following, namely:―
(a) the consent of both the spouses for the adoption shall be required, in case of a married couple; (b) a single female can adopt a child of any gender;
(c) a single male shall not be eligible to adopt a girl child.
(3) No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step-parent adoption.”
Clause (1) of Regulation 5 states that prospective adoptive parents must be physically, mentally, emotionally, and financially stable. In addition, they must also not have any life-threatening medical condition or should not have been convicted in a criminal act or should not have been accused in a case concerning a violation of child rights. The general conditions in clause (1) are aimed at securing the best interest of the child. The conditions focus on physical, emotional, and financial stability.
Clause (2) stipulates that any person irrespective of their marital status and irrespective of whether they already have a biological child can adopt. To this extent, the provision is expansive.
However, clause 2(a) states that:
(a) in case of a married couple, the consent of both the spouses is required; and
(b) though a single female can adopt a child of any gender, a single male shall not be eligible to adopt a girl child.
Clause (3) prescribes a further restriction on the conditions to be met before someone can adopt. The provision states that a child shall be given in adoption to a couple only if they have at least two years of a stable marital relationship (except in cases of relative or step-parent adoption).
Though Regulation 5(2)(a) taken alone does not preclude unmarried couples from being prospective adoptive parents, a combined reading of Regulations 5(2)(a) and 5(3) elucidates that:
(a) only married couples can be prospective adoptive parents; and
(b) such couples must be in “at least two years of stable marital relationship”.
A reading of the Adoption Regulations indicates that while a person can in their individual capacity be a prospective adoptive parent, they cannot adopt a child together with their partner if they are not married.
The Adoption Regulations are framed in exercise of the power conferred under the JJ Act. Section 57(5) of the JJ Act grants the Authority (which means CARA in terms of Section 2(3) of the JJ Act) the power to specify any other criteria. Set out below is a table comparing the criteria to be prospective adoptive parents prescribed under the JJ Act and the Adoption Regulations:
The petitioners submitted that the Adoption Regulations are ultra vires the provisions of the JJ Act because they bar unmarried couples from adopting. It was also submitted that the distinction between married and unmarried persons for the purpose of adoption is violative of Article 14 of the Constitution.
It is settled law that delegated legislation must be consistent with the parent act and must not exceed the powers granted under the parent Act (JJ Act). The rule making authority must exercise the power for the purpose for which it is granted. The provisions of the delegated legislation will be ultra vires if they are repugnant to the parent Act or exceed the authority which is granted by the parent Act.
Section 57(5) delegates to CARA the power to prescribe any other criteria in addition to the criteria prescribed by the provision. However, in view of the line of cases on subordinate law-making, this power cannot be read expansively. CARA’s power to prescribe additional criteria is limited by the express provisions and legislative policy of the JJ Act.
The Adoption Regulations place two restrictions on a couple who wish to adopt:
First, the couple must be married, and
Second, the couple must have been in a stable marital relationship.
We will now determine if the prescription of these two additional conditions is violative of the provisions of the JJ Act and the Constitution.
Regulation 5(3) of the Adoption Regulations exceeds the scope of the JJ Act
Section 3 of the JJ Act prescribes the general principles to be followed in the administration of the Act. The provision, inter alia, includes the principle of best interest, which stipulates that all the decisions regarding the child shall be based on the best interest of the child which will help the child develop their full potential.
The provisions of the JJ Act promote the best interest of the child and ensure their development. In fact, the eligibility criteria prescribed in Section 57 are an extension of that principle. The legislative intent behind prescribing the conditions of physical and mental fitness is to ensure that the parents are able to prioritise the well-being of the child.
Similarly, the condition requiring the consent of both spouses ensures that the child is able to receive the attention and care of both partners. The intent is not to give a child for adoption to a couple where one of them is unwilling to take up the responsibility of being a parent.
Similarly, the criterion prohibiting a single male from adopting a girl child is in the State’s interest of preventing child sexual abuse. It can be garnered that the State has prescribed the criteria in Section 57 keeping in mind the welfare of the child.
Section 57(2) does not stipulate that only married couples can adopt. It states that “in case of a couple” the consent of both the spouses must be secured. This is a clear indicator that adoption by a married couple is not a statutory requirement. Section 57(2) provides that the consent of both the parties must be received if the prospective adoptive parents are in a married relationship. The usage of the phrase spouse in Section 57(2) does not mean that it excludes unmarried couples from adopting.
However, Regulation 5(3) of the Adoption Regulations bars unmarried partners from being prospective adoptive parents. These Regulations only permit persons to adopt in an individual capacity and not jointly as an unmarried couple.
Regulation 5(2) states that every person irrespective of whether they are married or unmarried will be able to be prospective adoptive parents. The subsequent criteria in clause (a) (that is, the requirement for the consent of both spouses if they are married) does not exclude an unmarried couple from adopting. It only states that if the couple is married, then the consent of both the parties shall be secured.
However, Regulation 5(3) in express terms excludes unmarried couples from adopting by prescribing the condition that the couple must have been in two years of a ‘stable marital relationship.’ As observed in the previous paragraph, the JJ Act does not preclude unmarried couples from adopting. Though Section 57 of the JJ Act grants CARA the power to prescribe additional criteria, the criteria must not exceed the scope of the legislative policy.
Neither the general principles guiding the JJ Act nor Section 57 in particular preclude unmarried couples from adopting a child. In fact, all the other criteria ensure the child’s best interests. The Union of India has not proved that precluding unmarried couples from adopting a child (even though the same people are eligible to adopt in their individual capacity) is in the child’s best interests. Thus, CARA has exceeded its authority by prescribing an additional condition by way of Regulation 5(3), which is contrary to tenor of the JJ Act and Section 57 in particular.
Further, the usage of the phrase ‘stable’ in Regulation 5(3) is vague. It is unclear if the provision creates a legal fiction that all married relationships which have lasted two years automatically qualify as a stable relationship or if there are specific characteristics in addition to those prescribed in Regulation 5(1) (that is, physical, mental, and emotional wellbeing) which would aid in the characterization of a married relationship as a stable one. Hence, Regulation 5(3) exceeds the scope of the JJ Act.
Regulation 5(3) of the Adoption Regulations violates Article 14 of the Constitution
Regulation 5(3) of the Adoption Regulations has classified couples into married and unmarried couples for the purpose of adoption. The intent of CARA to identify a stable household for adoption is discernible from Regulation 5(3). However, CARA has proceeded under the assumption that only married couples would be able to provide a stable household for the child. Such an assumption is not backed by data.
Although married couples may provide a stable environment, it is not true that all couples who are married will automatically be able to provide a stable home. Similarly, unmarried relationships cannot be characterized as fleeting relationships which are unstable by their very nature. Marriage is not necessarily the bedrock on which families and households are built.
While this is the traditional understanding of a family, we have already elucidated above that this social understanding of a family unit cannot be used to deny the right of other couples who are in domestic partnerships or live-in relationships to found a family.
It is now a settled position of law that classification per se is not discriminatory and violative of Article 14. Article 14 only forbids class legislation and not reasonable classification. A classification is reasonable, when the following test is satisfied:
a. The classification must be based on an intelligible differentia which distinguishes the persons or things that are grouped, from others left out of the group; and
b. The differentia must have a rational nexus to the object sought to be achieved by the statute.
The Adoption Regulations use marriage as a yardstick to classify couples. There is an intelligible differentia in using marriage as an indicator to classify couples in the sense that married couples can easily be distinguished from unmarried couples. However, the differentia does not have a rational nexus with the object sought to be achieved by the CARA Regulations which is to ensure that the best interest of the child is protected.
Placing a child in a stable family is undoubtedly in pursuance of a child’s interest. However, the respondents have not placed any data on record to support their claim that only married relationships can provide stability. It is true that separating from a married partner is a cumbersome process when compared to separating from a partner with whom a person is in a live-in relationship. This is because separation from a married partner is regulated by the law while live-in relationships are unregulated by law (other than for the limited purpose of domestic violence).
For instance, the law deters a person from securing a divorce immediately by prescribing conditions such as a six-month waiting period after a petition for divorce by mutual consent is filed. Merely because a marriage is regulated by the law, it cannot be assumed that marriage alone or that every marriage accords stability to a relationship. Similarly, it can also not be inferred that couples who are not in a married relationships are not ‘serious’ about the relationship.
The stability of the household depends on various factors such as the effort and involvement of the partners in establishing and running a household, creating a safe space at home, creating a healthy work-life balance, and a household where mental, physical, and emotional violence is not inflicted on one another.
There is no single form of a stable household. There is no material on record to prove the claim that only a married heterosexual couple would be able to provide stability to the child. In fact, this Court has already recognized the pluralistic values of our Constitution which guarantee a right to different forms of association.
The Union of India is required to submit cogent material to support its claim that only married partners are able to provide a stable household. However, it has not done so. The Union of India has submitted four studies titled “Child AttentionDeficit Hyperactivity Disorder (ADHD) in same sex parents families in the United States: Prevalence and Comorbidities,” “High School graduation rates amongst children of same sex households,” “Children in planned lesbian families: stigmatization, psychological adjustment and protective factors,” and “Children in three contexts: Family, Education and Social Development.”
The studies submitted by Ms. Aishwarya Bhati, learned ASG conclude that non-heterosexual couples cannot effectively take up the role of parents. The studies neither indicate that only married (and not unmarried) couples can be in a stable relationship nor that only married couples have the ability to effectively parent children.
Thus, the Union of India has not submitted any cogent material to substantiate the claim that unmarried couples cannot be in a stable relationship. The Union of India has not been able to demonstrate that a single parent who adopts a child will provide a more stable environment for a child who is adopted than an unmarried couple.
For all these reasons, Regulations 5(2) (a) and 5(3) of the Adoption Regulations are violative of Article 14 of the Constitution.
Further, in terms of Section 58(2) of the JJ Act, the Specialised Adoption Agency is required to prepare a home study report of the prospective adoptive parents. It is only when the prospective adoptive parents are found eligible after the home study report that a child is referred to them for adoption. Section 58(5) provides that the progress and wellbeing of the child shall be ascertained after the adoption.
The procedure for adoption provides for the assessment of a couple and their capacity and ability to care for a child. Any areas of concern relating to a couple’s capability as a parent would be discernible in the home study. This is true of both heterosexual couples as well as queer couples. The home study must consider the couple’s capability without reference to their sexual orientation.
Regulation 5(3) of the Adoption Regulations violates Article 15 of the Constitution
Ms. Aishwarya Bhati referred to the judgment of this Court in Shabnam Hashmi v. Union of India[1] to argue that the fundamental right to adopt is not recognised under the Constitution and thus, the exclusion of queer persons from the scheme for adoption is not violative of Part III of the Constitution.
In Shabnam Hashmi (supra), a petition was filed under Article 32 of the Constitution seeking a declaration that the Constitution guarantees the right to adopt, and in the alternative, requesting the court to law down guidelines enabling adoption by persons irrespective of religion, caste, and creed. This Court disposed of the petition by observing that the adjudication of the question of whether adoption must be elevated to the status of a fundamental right must await the “dissipation of conflicting thought processes”:
The observations of this Court in Shabnam Hashmi (supra) that it is not the appropriate time to recognise a right to adopt and to be adopted does not affect the case of the petitioners. The petitioners’ challenge to Regulation 5(3) of Adoption Regulations is mounted on the ground that is discriminates against the queer community. The challenge is not on the ground that it violates the right to adopt nor is it the petitioners case that they have a fundamental right to adopt.
Regulation 5(3), though facially neutral, indirectly discriminates against atypical unions (such the relationship between non-heterosexual partners) which have not been recognised by the State. Queer marriages have not been recognized by the state and queer persons in atypical unions cannot yet enter into a marriage which is recognized by the state. Though the additional criteria prescribed by the Adoption Regulations would also affect a heterosexual person’s eligibility to adopt a child, it would disproportionately affect non-heterosexual couples.
This is because the State has not conferred legal recognition to the unions between queer persons, in the form of marriage. Consequently, an unmarried heterosexual couple who wishes to adopt a child has the option of marrying to meet the eligibility criteria for adoption. However, this option is not available to queer couples. When Regulation 5(3) is understood in light of this position, a queer person who is in a relationship can only adopt in an individual capacity. This exclusion has the effect of reinforcing the disadvantage already faced by the queer community.
The National Commission for Protection of Child Rights (‘NCPCR’) has submitted that excluding queer persons from adopting children is backed by cogent reasons. As stated above, Ms. Aishwarya Bhati submitted four studies to support the claim that permitting non-heterosexual couples to adopt is not in the best interest of the child.
The paper titled “Child Attention-Deficit Hyperactivity Disorder (ADHD) in same-sex parent families in the United States: Prevalence and Comorbidities,” examines a sample of 1,95,240 children including 512 children with same-sex parents. The paper concluded that children with same-sex parents in the United States were twice as likely to suffer from ADHD than children with opposite-sex parents.
The paper titled “High School graduation rates among children of same-sex households” uses the 2006 Canada census to study high school graduation probabilities of children of parents belonging to the queer community. The paper concluded that children living with parents belonging to the queer community perform more poorly in school when compared to children living with married heterosexual parents.
The paper titled “Children in planned lesbian families: stigmatisation, psychological adjustment and protective factors” conducted a study to assess the extent to which children between eight and twelve years in planned lesbian families in the Netherlands experience stigmatization. For the purpose of this assessment, data was collected from questionnaires filled out by mothers and by children. It was concluded that higher levels of stigmatization were associated with such children. Boys were found to be more hyperactive and girls were found to suffer from a lower self-esteem.
The paper titled “Children in three contexts: Family, education, and social development” collected a sample of 174 primary school children living with married heterosexual couples, cohabiting heterosexual couples, and homosexual couples to explore the relationship between family environment and the behaviour of primary school children. The study concluded that the children of married couples are more likely to do well at school, in academic and social terms, than children of cohabiting heterosexual and homosexual couples.
However, the author cautions that there may be additional factors such as biases which the teachers may have held while assessing the children, based on their cultural beliefs.
On the other hand, Dr. Menaka Guruswamy appearing for the intervenor, Delhi Commission for Protection of Child Rights argued that there is no evidence or empirical data to show that non-heterosexual couples are unfit to be parents or that the psychosocial development of children brought up by same-sex couples will be compromised.
The learned counsel relied on the paper titled “Lesbian and Gay Parenting” by the American Psychological Association in which it was concluded that the home environment provided by non-heterosexual couples is not different from that provided by heterosexual parents.
In another study titled “Same-sex parenting in Brazil and Portugal: An integrative review”, the authors found that the adoption of children by one of the individuals in a non-heterosexual partnership because of the delay in the recognition of same-sex marriage became a weakness to such families on the issues of health, education, and other responsibilities.
In another paper titled, “Academic achievement of children in same and different sex parented families: A population-level analysis of linked administrative data from the Netherlands”, it was concluded that the children raised by same-sex couples performed at least as well as children of heterosexual parents in socio-political environments characterised by high levels of legislative or public support, and that the children living in same-sex parented families experience no educational disadvantage relative to children living in heterosexual parented families.
The learned counsel also relied on a study which was conducted based on the data derived from Netherlands where same-sex marriages were formalised in 2011. The study found that the academic results of children indicated that children raised by non-heterosexual parents outperformed children raised by heterosexual parents by 0.139 standard deviations, and that they are 4.8 percentage points more likely to graduate.
The studies which have been submitted by the counsel on either sides support their respective arguments. The studies submitted by Ms Bhati support the argument that even if Regulation 5(3) discriminates against the queer community, it is justified because the interest of the child would suffer if they are parented by queer partners.
On the other hand, the studies submitted by Dr. Menaka Guruswamy support the argument that the interest of the child parented by persons belonging to the queer community does not suffer, and if it does it is not because persons with queer identity are ‘bad’ parents but because the State by not recognising queer relationships treats them as second-class citizens.
The burden which is required to be discharged by the State for an Article 14 violation and an Article 15 violation vary. While Article 14 prohibits unreasonable classification, Article 15 prohibits discrimination based on identity. The interpretation of Article 15 has evolved over the years to incorporate a more substantial effects-based approach towards the anti-discrimination principle. The test is whether the law discriminates against persons in effect, based on the identities covered in Article 15.
While the Court is undertaking an exercise to determine if Article 14 is violated, the State is required to submit cogent evidence to support its claim that the classification holds a nexus with the object sought to be achieved. On the other hand, there is no justification for discrimination based on identities which are protected under Article 15.
State interests (even if established which in this case it has not been) cannot be used to justify discrimination once the Court holds that the provision in effect discriminates based on identity. Of course, while the Court is assessing if the provision under challenge discriminates in effect based on identity, it must also evaluate whether the provision in question is a protective provision meant to achieve the guarantee of substantive equality.
For example, it cannot be argued that the Transgender Persons Act is violative of Article 15 because it provides special provisions to safeguard the interest of the transgender community in exclusion of cis-gender persons. A classification based on the identities protected by Article 15 does not automatically lead to discrimination. This Court in State of Kerala v. NM Thomas[2] held that protective provisions (such as for reservation) were not an exception to the anti-discrimination law but are in furtherance of the principle of equality (of which antidiscrimination is a facet).
The Court examines if the law is discriminatory not based on whether there is a classification based on the identity but whether there is discrimination based on the identity. While doing so it determines if it is a protective provision. However, once it is established that the law discriminates based on protected identities, it cannot be justified based on state interest.
Thus, once it is proved that the law discriminates based on sexual orientation as in this case (because it disproportionately affects queer persons), no amount of evidence or material submitted by the State that such discrimination is based on state’s interest can be used as a justification.
We are of the opinion that if the children of persons from the queer community suffer it is because of the lack of recognition (at a legal and social plane) to same-sex unions. In fact, one of the studies submitted by Ms. Aishwarya Bhati highlights this aspect.
The stigmatization (if any) faced by the children parented by persons of the queer community is because of the inherent biases that the society holds against the queer community, and in this context, biases about their fitness to be parents. Thus, it is in the interest of children that the State endeavours to take steps to sensitise the society about queer relationships.
The law cannot make an assumption about good and bad parenting based on the sexuality of individuals. Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution. This assumption is not different from the assumption that individuals of a certain class or caste or religion are ‘better’ parents.
In view of the above observations, the Adoption Regulation is violative of Article 15 for discriminating against the queer community.
In view of the observations above, Regulation 5(3) is ultra vires the parent Act for exceeding the scope of delegation and for violating Articles 14 and 15 of the Constitution. It is settled that courts have the power to read down a provision to save it from being declared ultra vires.
Regulation 5(3) is read down to exclude the word “marital”. It is clarified that the reference to a ‘couple’ in Regulation 5 includes both married and unmarried couples including queer couples. In bringing the regulations in conformity with this judgment, CARA is at liberty to ensure that the conditions which it prescribes for a valid adoption subserve the best interest and welfare of the child. The welfare of the child is of paramount importance.
Hence, the authorities would be at liberty to ensure that the familial circumstances provide a safe, stable, and conducive environment to protect the material wellbeing and emotional sustenance of the child. Moreover, CARA may insist on conditions which would ensure that the interest of the child would be protected even if the relationship of the adoptive parents were to come to an end in the future. Those indicators must not discriminate against any couple based on sexual orientation. The criteria prescribed must be in tune with constitutional values.
The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried or queer couples who seek to jointly adopt a child.
The forms in Schedules II (child study report), III (medical examination report and classification of special needs of a child), VI (online registration form) and VII (home study report) use the phrases “male applicant” and “female applicant”. We have already concluded above that both married and unmarried couples can adopt under Regulation 5 of the Adoption Regulations.
After the judgments of this Court Navtej Johar v. Union of India (2018) and NALSA v. Union of India (2014)recognising non-binary identity and their freedom to choose a partner irrespective of the sexual identity, reference to a ‘couple’ cannot be restricted to heterosexual relationships.
It will include all forms of queer relationships. The phrases “male applicant” and “female applicant (in case of applicant couples)” in Schedules II, III, VI and VII of the Adoption Regulations limit reference to only heterosexual couples and have the effect of precluding persons in queer relationships from adopting, violating the anti-discrimination principle in Article 15(1).
Thus, the phrases “male applicant” and “female applicant (in case of applicant couples)” in Schedules II, III, VI and VII of the Adoption Regulations are substituted with the phrases “prospective adoptive parent 1” and “prospective adoptive parent 2 (in case of applicant couples).”
Reference
Supriya @Supriyo chakroborty v. Union of India (2023)
[1] (2014) 4 SCC 1
[2] (1976) SCC 2 310