The Constitution Bench, which delivered a majority judgment in the same-sex marriage case on October 17, was divided in its opinions on whether unmarried couples, including same-sex partners, can jointly adopt children.
Chief Justice D.Y. Chandrachud held that Regulation 5(3) of the Adoption Regulations, which bars unmarried partners from being prospective adoptive parents, was ultra vires the Juvenile Justice Act and violative of the fundamental rights of queer couples.
“These regulations only permit persons to adopt in an individual capacity and not jointly as an unmarried couple,” Chief Justice Chandrachud observed.
The majority views of Justices S.R. Bhat, Hima Kohli and P.S. Narasimha, however, said the regulation was not void.
Justice Bhat said that the Central Adoption Resource Authority (CARA) and the Union government should appropriately consider the realities of de facto families, where single individuals were permitted to adopt and thereafter start living in a non-matrimonial relationship.
“In an unforeseen eventuality, the adopted child in question could face exclusion from the benefits otherwise available to adopted children of married couples. This aspect needs further consideration, for which the court is not the appropriate forum,” he said.
Chief Justice Chandrachud noted that Regulation 5(3) in express terms excluded unmarried couples from adopting by prescribing the condition that the couple must have been in two years of a ‘stable marital relationship’.
He observed that the JJ Act, however, did not preclude unmarried couples from adopting.
The Chief Justice noted that the assumption that only married couples could provide a stable environment to children was not backed by data. “Unmarried relationships cannot be characterised as fleeting relationships which are unstable by their very nature. Marriage is not necessarily the bedrock on which families and households are built,” Chief Justice Chandrachud noted.