'No Compulsion To Have Biological Children...': CJI Chandrachud On Adoption Row In Same-Sex Marriage Hearing

As the hearings on the legalisation of same-sex marriage entered its ninth day, CJI DY Chandrachud said that there is no 'compulsion' to have biological children. 

A rainbow flag representing the LGBTQ community

The Supreme Court on Wednesday resumed hearings on the ongoing row seeking the legalisation of same-sex marriage. As the hearings entered its ninth day, CJI DY Chandrachud said that there is no "compulsion" to have biological children. 

"There is no compulsion to have biological children and that is why our law envisages that beyond the realm of a couple having a child, adoption is away, what if a mother passes away, the father takes on both the duties," CJI Chandrachud said, according to India Today.


Citing CARA (Central Adoption Resource Authority), Chandrachud also said the law also permits a single person to adopt irrelevant of the person's sexual orientation.  

Additional Solicitor General Aishwarya Bhati said that 'single people have no rights'. "If a spouse is read in the Special Marriage Act, children will suffer the most, it cannot even be fathomed, but they will suffer, the entire architecture of this court's judgment and statutes has been from the prism of the child and no one else," she said before the court, according to the report by India Today. 

Bhati further said that even heterosexual couples also have to show two years of stable marriage to adopt and if they are single parents, there are different considerations. 

She added, "Fathers and mothers both play complementary roles in the upbringing of children. The state is justified in treating homosexual and heterosexual unions differently for that purpose," according to LiveLaw. 

The welfare of the child is paramount and cannot be opened for even an iota of compromise and uncertainty, she said. 

Earlier, Chandrachud said, “Incidentally, as the law stands today, even if a couple is in a gay relationship or a lesbian relationship, one of them can adopt. So the argument that it will have a psychological impact on the child is denied by the fact that even today, as the law stands…once you have decriminalised homosexuality, it is open," he observed, as per the report.

"It's just that the child loses the benefits of parenthood of both the parents.”

Earlier on Tuesday, the National Commission for Protection of Child Rights (NCPCR) moved the Supreme Court against the legalisation of same-sex marriages. The child rights body said children raised by same-sex parents may have a limited exposure to the traditional gender role models.

Seeking the top court's intervention in a batch of petitions, the commission said the Hindu Marriage Act and the Juvenile Justice Act do not recognise adoption by same-sex couples. "Allowing adoption to same-sex couples is akin to endangering the children," the commission said in its plea.

The top court has made it clear that it will not go into personal laws governing marriages while deciding the pleas seeking legal validation for same-sex marriages. It also asserted that the very notion of a man and a woman, as referred to in the Special Marriage Act, was not "an absolute based on genitals".     

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