The Supreme Court in a 3:2 split verdict held that the existing regulations that deny unmarried couples, including queer, to adopt a child as a couple is violating ‘Right to adoption’.
About the Adoption Rights of Unmarried couples in India:
The current adoption rules of the country under the Central Adoption Resource Authority (CARA) allow unmarried persons to adopt children only in an individual capacity.
Unmarried couples, including queer couples, cannot jointly adopt a child.
This is due to the eligibility criteria for prospective adoptive parents under Regulation 5 (3) require a couple to have been in at least two years of “stable marital relationship”.
Supreme Court’s Views:
The Apex court held that the regulation shall be read down to exclude the word “marital” so that it includes both married and unmarried couples as well as queer couples so that they too can jointly adopt a child.
The court asserts that the regulation discriminated against the queer community, violating Article 15 of the Constitution.
The court mentioned that Juvenile Justice (Care and Protection) Act granted CARA the power to subscribe additional criteria; it cannot exceed the scope of legislative policy.
Also the JJ Act does not preclude unmarried couples from adopting a child stating that the best interest of the child has to be the main objective.
What are concerns associated with giving unmarried couples, a right to adopt?
Difficulty to interpret’ Family as a unit’ under the legal system: Once the law permits adoption by single individuals, it might lead to them forming de facto family units with their partners. This raises important questions about how society and legal systems define and support different family structures.