Adoption is the creation of a parent-child relationship through a legal and social process. This is a procedure referred to in section 2(2) of the Juvenile Courts (Care and Protection of Children) Act 2015 whereby a biological child of one group of parents becomes the child of another group of parents or a single parent. India`s adoption policy is marked by social prejudice and a lack of sensitivity to child protection. Laws such as the Juvenile Courts Act of 2000 have been amended to enshrine the principle of secularism, thus allowing adoptions regardless of the community and religious beliefs of the child and his or her parents. However, legislation has failed to establish equality between adopted and biological children. This legal defect was corrected by the Child Protection and Protection Act of 2006, which allowed an adopted child to be treated as the legitimate biological child of the parents and to grant all rights, privileges and relationships arising from that relationship. However, the legislature has not respected the civil rights of same-sex couples who wish to enjoy family life through the adoption of children. According to a UNICEF study, there are 29.6 million orphaned and abandoned children in India, a country with a worrying adoption rate. However, consenting same-sex couples are still deprived of their adoption rights in the country. This article aims to discuss the need to grant adoption rights to same-sex couples in India. The quality of parenthood cannot be judged by the sexuality or marital status of the guardian.
These are the grey areas that the government must also develop and not imitate social morality. It is time for India to learn from other countries that have given way to adoption rights for LGBT couples. According to Article 2(1) of the Act, a Hindu not only refers to someone who practices Hinduism, but also includes Buddhists, Jains, Sikhs, Virashaiva, Lingayat, and members of the Arya Samaj. The followers of Brahmo and Prarthana are also included in the Hindu definition. In fact, the Hindu Adoption and Maintenance Act applies to anyone who is not Christian, Muslim, Parsi or Jewish living in India. The words “spouse” and “wife” are used in sections 7 and 8 of HAMA, which means that the law does not recognize adoption by same-sex couples. In addition, adoption eligibility for Hindu men and women is explained, leaving a grey area when it comes to applying such regulations to third-sex couples. By taking a progressive approach, the courts are now strengthening the rights of LGBTQ people. For example, the recent hearing of the Madras High Court on a petition by same-sex couples seeking the protection of their families. In hearing the motion, Justice N.
Anand Venkatesh unlearned his preconceptions about homosexuality. [16] The above laws violate Articles 14, 15 and 21 of the Indian Constitution. Section 14 guarantees every Indian citizen the right to equality before the law and equal legal protection. It is the fundamental right that is part of the fundamental structure of the Constitution. Article 14 seeks to impose arbitrariness in the action of the State, since any arbitrary action must necessarily imply the denial of equality. Discrimination between married and unmarried couples for the purpose of adoption does not meet the placement test and is arbitrary because the classification is unfair, unjust and inappropriate. Furthermore, there is no rational context that can be obtained by discriminating between opposite-sex and same-sex couples on the basis of their sexual orientation, as there is no evidence that same-sex couples are in any way inferior in parenting to opposite-sex couples. Research shows that LBTQIA+ parents do not affect a child at all, and in fact, children raised by same-sex parents do better in primary and secondary education. In 2020, a series of public interest litigation (PIL) was filed with the Supreme Courts of Delhi and Kerala seeking the legalization of same-sex marriage. While nothing has come of it yet, Grover believes it will come to fruition in the long run.
The best solution is to allow marriage. It will change everything from adoption to ART to succession. But there are still legal provisions to be made for those who do not want to get married. They shouldn`t have to marry just to have access to other civil rights,” he said. The “family” is a group of people who are related by marriage, blood or adoption, form a single household and interact with each other in their respective social positions. [1] It follows from these rules that marriage is in most cases a prerequisite for adoption. However, since the laws do not address same-sex marriage and the center is not inclined to accept same-sex marriage, it is up to these couples to adopt it. Even Australia has allowed adoption by same-sex couples in some of its territories since 2002.
The Northern Territory, the only region that has done so a bit, has also allowed it through the Adoption of Children (Equality) Amendment Bill 2017. [15] While LGBTQIA+ couples are not allowed to adopt a child, the number of orphans in India is increasing every day. According to a new study by an international charity for orphaned and abandoned children, 20 million orphans live in India, a number that is expected to increase by 2021.