Indian laws permit individual to adopt child, says SC on same-sex marriage

The bench noted that law recognises that there may be situations apart from this "ideal family" having their own biological children

The Supreme Court on Wednesday said Indian laws allowed an individual to adopt a child irrespective of marital status as the country has gone beyond motherhood and gone into parenthood and there are single parents too.

The child rights panel, NCPCR, led by Additional Solicitor General Aishwarya Bhati contended before a five-judge bench presided over by Chief Justice of India D Y Chandrachud, hearing pleas for legal sanction to same-sex marriage, that the entire architecture of the laws is to protect the interest and the welfare of children who are naturally born to heterosexual persons.

It said the state is justified in treating heterosexuals and homosexuals differently and stressed that the concept of gender may be “fluid” but not mother and motherhood.

The court, however, said, “There are situations where there is just one father. We have gone beyond motherhood and gone into parenthood. There are single parents too”.

The bench, also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha, said that one can be an adopted child of just the male, it is an evolving scene and what is central to this and what remains unchanged is the welfare of the child.

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The hearing on a batch of petitions seeking legal validation for same-sex marriage is continuing on the ninth day before the bench.

The top court on Tuesday said it has to be alive to the fact that the concept of marriage has evolved and must accept the basic proposition that marriage itself is entitled to constitutional protection as it is not just a matter of statutory recognition.

It said it would be "far-fetched" to argue there is no right to marry under the Constitution, which itself is a "tradition breaker".

Senior advocate Kapil Sibal, appearing for the ‘Jamiat-Ulama-i-Hind’, a body of Islamic scholars, Tuesday told the bench that it was a “very dangerous proposition” of the petitioners that the top court should make a declaration about legal validation for same-sex marriage as Parliament is not likely to do anything about it.

“I am afraid that is a very dangerous proposition. It was said at the outset that we (petitioners) don’t expect Parliament to move forward, don’t expect Parliament to pass such a law and therefore, your lordships should do it. I say that is a very dangerous route to take,” Sibal had said.