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SAME-SEX MARRIAGE AND ADOPTION RIGHTS IN INDIA

Updated: Feb 6

By

Shikha Mishra, III Year of LL.B, from Modi law college


INTRODUCTION

While we’ve seen recent gains within the country with regards to LGBTQ+ rights, the govt has actively rebuked any idea of same-sex adoption and parenting, with laws still being governed by the heteronormative, patriarchal structure which emphasizes marriage and partnership between a cisgender man and woman. Same-sex adoption is legal in 44 countries, India being not on the list. Though criminalizing queer existence is unconstitutional, it still holds traditional views on queer people’s right to marry and have children.


Menaka Guruswamy and Arundhati Katju two of the Senior Advocates of the Supreme Court Of India that fought the legal battle against Section 377 in court, have now put forth the plan of fighting for the acceptance of same-sex marriages. Same-sex marriage is legal in 29 countries across the world as of May 2020. While many see the legalisation of same-sex marriages because the next obvious step, others from within the community view this move as exclusive. As per the Indian context, this becomes even more rigid. Menaka Guruswamy elaborates in the video recorded at Oxford University, “We are a country that sanctifies a kind of relationship – marriage and policing a relationship has been integral to our legal history.” In Indian society, marriage is the only socially & legally acceptable relationship between two people. So it is said that if the queer community is to be comprehended, it has to be done within these folds. While the law does not allow same-sex marriages, couples can choose for a ‘Civil Union’ under the Special Marriages Act 1954. Further, India being a collectivist culture may be a kin-based society, holding the institutions of family and married very close.


The Marriage Project, a legal framework aimed toward making same-sex marriages constitutional rights has been underway ever since the decriminalization of section 377. As per Guruswamy, “gay or straight, Hindu or Muslim, upper caste or lower caste, male or female, all desire the identical thing: a long-lasting relationship ‘recognized by the society and law'”. This project aims to bring some systematic amends to legitimize same-sex marriage legally, by getting future relationships recognized by society and legalisation under the constitution.


MARRIAGE OF TRANSGENDERS

Marriage is a legally or formally recognized union of two people as partners in a relationship. Earlier in Corbett v. Corbett, it had been held that sex is a vital determinant of the relationship. It is called marriage as recognized as the union of man and woman and, in keeping with Section 11 of the Matrimonial clause Act, Marriage is void if parties don’t seem to be respectively male and female. But now the advancements are taking place, and the Supreme court in the leading case of Navtej Singh Johar v. Union of India held Section 377 of Indian Penal Code, 1860, i.e., consensual homosexual relations, as unconstitutional violating the Article 14,15 and 21 of the constitution,1950. But still, there has been no clear stance on the marriage laws of the LGBTQ Community. Is there a scarcity of legal provision in-laws, there is a necessity to insert amendments to special marriage acts or entirely make up a new Act for their rights.


Marriage and the adoption of children are still an enormous huge problem for sexual minorities. To get married, transgenders have to face many difficulties. Even if they are transmen or transwomen, they have to procure the identity cards as ‘cismale’ and ‘cisfemale’ to get married. They can live together, but their marriage won’t be valid in the eyes of the law. Transgender people are subject to legal vulnerability by trying their best to get the most out of the shackles. They ought to not hesitate to exercise their matrimonial rights and be remember of all legal consequences.


ADOPTION LAWS FOR TRANSGENDERS IN INDIA

The Central Adoption Resource Authority (CARA) issued some guidelines for the prevention of foreigners in same-sex relationships from adopting children in India. CARA is a Statutory Body of the Ministry of Women and Child Development that regulates the adoption of children by foreigners and residents of India through inter-Country and in-Country adoption, regulations respectively.


The Union had decided to stop transgender couples from adopting children in the year 2014. This would also prevent the lesbian, gay, bisexual, and transgender community from becoming adoptive parents. The Union Cabinet took this decision while considering the amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000. However, the bill talks about rehabilitation and adoption of children, does not mention the provision of disallowing same-sex couples from adopting.


As per the current laws, single LGBT Indians are not specifically barred from adopting children. The Transgender Persons (Protection of Rights) Bill 2019 prevents discrimination against transgender people in areas such as education, employment, and healthcare facilities. With changes and positive approaches towards bringing legal changes according to the changing demands and needs of the society, India has now been witnessing positive achievements. But even today, it hasn’t been able to change the approach and thought process of people, and hence the LGBT community has to suffer. Firstly, they fight for an identity, and now that they have achieved it, they fight to achieve other legal rights which they ought to get like every other citizen of the society gets.

The question that deserves immediate attention is whether or not justice has been served to the LGBT community in every way. The answer to this is No. What conditions have to be fulfilled for a parent to adopt a child? CARA mentions in its eight heads of the eligibility criteria for prospective adoptive parents.


None of the conditions mentioned within the eight heads of CARA speak about LGBTQ parents. There’s nothing wrong for the community to expect a normal life that every other person gets to steer. The upbringing of a child and doing everything that a normal parent does should be rightfully made legal.


If this amendment is made under CARA, it will help in bringing a radical change for the entire LGBT community since they’re still finding it practically difficult to find their place in the mainstream society and its outlook towards what’s ethically right and what’s ethically wrong. Even though they are now allowed to live together and stay as a couple legally, they’re still not allowed to adopt a child and feel happy as all other parents in the society feel do.


Child adoption laws in India came primarily from ‘The Guardians and Wards Act, 1890’. Adoption laws laid down under ‘The Hindu Adoptions and Maintenance Act, 1956’, which was established after the independence which only govern Hindus. Adoption laws of Muslims, Christians, Parsis, and Jews were regulated under the Guardians and Wards Act, 1890. It had been only until The Juvenile Justice Act, 2000, that any person irrespective of their religion, or caste could adopt a child by fulfilling the criteria prescribed by CARA.


However, research consistently shows that gay and lesbian parents are as fit and capable as heterosexual parents, and their children are as psychologically healthy and well-adjusted as those reared by heterosexual parents. A gender policy is required for all socio-legal issues so that it doesn’t discriminate between gender and equal adoption rights to this community.[i]


GAURI SAWANT- QUEER PARENTING

One of the most cited cases of queer parenting and adoption in India is of Gauri Sawant. A transgender activist and a leading voice in the LGBTQ community. She decided to adopt Gayatri and raise her daughter when she was at the risk of being trafficked. She tried to legalize this adoption, becoming the first transgender person to file a petition with the Supreme Court for adoption rights.[ii]


CONCLUSIVE REMARKS

Law is dynamic, it changes according to the needs and demands of society. The fight for the LGBT community is not over. They are still struggling to get the rights that other members of the mainstream society enjoy. The legal body to review its provisions and amend it to give adoption rights to the LGBT community.


There has been a lot of advancements also, it’s not like the earlier miserable picture of the LGBTQ Community. Recently, the Uttar Pradesh Government amended the few provisions to empower transgender with the right to inheritance of ancestral agricultural land. The amendments have been made in Section 4(10), 108(2), 109, and 110 of the Uttar Pradesh Revenue Code Amendment Act, 2020. [iii]


We are seeing the discussion of queer marriage and parenting come more to the forefront. Companies in India now are starting to include more LGBTQ+ inclusive policies, it’ll be interesting to see if and how corporates can affect policy too. We need to support our transgender community for total liberation, especially with the recent Transgender Persons (Protection of Rights) Bill, 2019 causing concern. Hopefully, both same-sex marriage and adoption will be legalized one day in India, further ensuring our equal civil rights. But the victory will gather real meaning only when they achieve the right to marriage, adoption, inheritance, security, guardianship, etc. Like any other member of society.[iv]