'Motherhood and mothering not limited to gender or marital status,' Indian Supreme Court Affirms Right to Adopt for Everyone

Same Sex Marriage: The Supreme Court stated today that under Indian law, anyone can adopt a kid, regardless of their marital status, and that the law acknowledges that not every circumstance is like the one in which a "ideal family" has its own biological children. The child rights organisation NCPCR stated in its application to the Supreme Court, which is hearing appeals seeking judicial recognition of same-sex unions, that while the concept of gender may be "fluid," motherhood and mothering are not.

NCPCR clarifies that adopting a child is not a fundamental right

The National Commission for Protection of Child Rights (NCPCR) informed a five-judge Constitutional bench presided over by Chief Justice DY Chandrachud that it has been held in several judgements that adopting a child is not a fundamental right, highlighting the legal position in various statutes that the welfare of a child is paramount. According to Additional Solicitor General Aishwaraya Bhati, who appeared on behalf of NCPCR and others, "the entire architecture of our laws to protect the interest and welfare of children who are naturally born to heterosexual persons and the State is justified in treating heterosexual and homosexuals differently." She asserted that children's welfare comes first. The bench, which also included Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha, stated that there is no disagreement with the idea that a child's welfare comes first.

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Supreme Court recognizes the importance of adoption

Our laws do recognise that you might adopt for a variety of reasons, the Chief Justice of India remarked. "Anyone, even by themselves, can adopt a child. He or she might be engaged in a monogamous relationship. Even if you are capable of giving birth naturally, you can adopt. The Chief Justice of India stated that having a biological birth is not required. The law acknowledges that there can be circumstances other than the 'ideal family' where everyone has their own biological offspring. What happens if a heterosexual marriage is still in progress and one spouse passes away? the bench questioned. On the ninth day before the bench, the hearing on a group of petitions for judicial recognition of same-sex marriage is still ongoing. On Tuesday, the Supreme Court said that it must recognise how the idea of marriage has changed and recognise the fundamental idea that marriage itself is entitled to constitutional protection since it is more than just a matter of legislative registration.

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Parliament is unlikely to take any action in this regard- Kapil Sibal

Senior attorney Kapil Sibal, speaking on behalf of the Jamiat-Ulama-i-Hind, a group of Islamic scholars, told the bench on Tuesday that it was a "very dangerous proposition" of the petitioners for the top court to rule on the legality of same-sex marriage because Parliament is unlikely to take any action in this regard. "That is a highly risky proposition, I'm afraid. It was stated at the outset that since we (the petitioners) don't expect Parliament to advance or enact such a measure, your lordships should take action. I believe that is a very risky course to follow," Mr. Sibal had stated.

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