Introduction
India, a country of rich cultural traditions and diverse values, is slowly moving towards broader recognition of rights for the LGBTQ+ community. However, when it comes to same-sex couples adopting children, the path is muddied and fraught with legal controversy. Adoption, in essence, is a legal process that establishes a permanent parent-child relationship between people who are not biologically related.[1]. The historic judgment in Navtej Singh Johar v. Unionof India[2]It was a revolutionary step towards equality for same-sex couples in India, striking down Section 377 of the Indian Penal Code, which criminalised consensual same-sex sexual acts. While this was a significant legal victory, it did not fully address the broader issue of civil rights for same-sex couples, including the right to adopt children. The social and legal arena for same-sex adoption remains in a sea of complexity and challenges. Even with a huge victory where homosexuality has been legalised in the country, discrimination and stigma against same-sex couples continue to arise in terms of family formation. Existing adoption laws in India are primarily designed for heterosexual couples, and their applicability to same-sex couples remains a subject of debate and legal uncertainty. This paper argues that same-sex couples should have equal adoption rights based on principles of equality, non-discrimination, and the child’s best interests.
Legal Framework and Gaps
The two fundamental laws regulating adoption in India are the Hindu Adoption and Maintenance Act (HAMA), 1956, and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). These laws provide a framework for the procedure and eligibility for adoption but do not significantly state whether same-sex couples can adopt.
[1] ‘Can Homosexual Couples Adopt in India?’ (Legal Service India – Law, Lawyers and Legal Resources) <https://www.legalserviceindia.com/legal/article-10416-can-homosexual-couples-adopt-in-india-.html> accessed 12 October 2024
[2]Navtej Singh Johar v Union of India (2018) AIR 2018 SC (CRI)