DCPCR Supports Marriage Equality Petitions In Supreme Court; Says Govt Should Create Awareness That Same Sex Families Are Normal

The Delhi Commission for Protection of Child Rights (DCPCR) has filed an intervention application in the pleas seeking legal recognition of same-sex marriage in India. The said pleas are listed before a Constitution bench of the Supreme Court on April 18, 2023.

While stating that the officials of DCPCR have a total of 15 years of collective experience in dealing with issues pertaining child rights, the application contends that the DCPCR - a statutory body under the Commission for Protection of Child Rights Act, 2005-  will be able to assist the Supreme Court on the impact of same-sex marriages on children.

The application, while supporting same-sex marriages and their right to adoption, deals with the following issues-

1. Concerns around the psychological impact upon children being brought up in same-sex households

At the outset, the application submits that from a psychological point of view, "multiple studies on same-sex parenting have demonstrated that same sex couples can be good parents, or not, in the same manner that heterosexual parents can be a good parent or not."

The statutory body said that same-sex couples do not have any advantage or disadvantage with respect to being good or poor at parenting when compared to heterosexual parents. 

It highlights various examples of countries that have legalised same-sex marriages and states that at present more than 50 countries allow same-sex couples to legally adopt children.

2. Gendered language used in legislations won't bar rights of same-sex couples

The application contends that the impact of the legalisation of same-sex marriages upon gendered language used in statutes does not present any serious concern. 

It further highlights that due to the patriarchal set up of our society, Indian Legislature has enacted many safeguards to tackle certain social vices which are disadvantageous to women.

"Examples include legislation such as the Domestic Violence Act, 2005, Dowry Prohibition Act 1961 etc. and certain provisions of the Hindu Marriage Act, 1956, the Special Marriage Act, 1954 and the Indian Divorce Act, 1869, granting certain special grounds for divorce exclusively to women," states the application.

It also argues that a gender neutral approach may be required for issues such as domestic violence, maintenance, and custody. 

"in homosexual marriages, the social reality of a dominant sex and a vulnerable sex may not necessarily arise. Though issues of domestic violence may exist, and so may need for maintenance, custody etc. to either spouse, the laws may require a gender-neutral approach. But this should not be a matter of concern as this is rather a matter of relief that the power-equation between the spouses is less likely to be titled to either side", the plea said.

3. The importance of the recognition of same-sex marriage

The application underlines the importance same-sex marriage would have upon the ability of children to grow up in a non-discriminatory environment in general. It contends that in a socio-legal environment where individuals having homosexual orientations do not enjoy basic legal rights at par with their heterosexual counterparts, adolescents who develop homosexual orientations may develop adverse psychological complexes and low self-esteem and suffer from other mental health issues.

It states-

"Further, unless equal rights are accorded to homosexuals, their acceptance, assimilation and legitimacy will remain under troubled waters. This again is bound to have its bearing upon adolescents."

The application also provides with jurisprudence of other constitutional courts and finally provides with possible guidelines that the Court may consider issuing. 

Following are the guidelines that are recommended by the DCPCR- 

a. Directions to the central and state government to take steps to create public awareness that same-sex family units are as “normal” as heterosexual family units, and - specifically - that children belonging to the former are not “incomplete” in any way;

b. Directions, specifically, to school boards and educational institutions that this normalisation be proactively undertaken specifically in classroom contexts where issues touching upon same-sex family units are brought up;

c. Directions to National and State Council for Education Research and Training (N/SCERT) to check - and eliminate - homophobic content in school textbooks;

d. Directions to National and State Council for Education Research and Training (N/SCERT) to rewrite or re-envisage the passages, caricatures, diagrams and references to family to include more diverse understanding of family and to homosexual couples as examples within the meaning of the family;

e. Directions to the relevant authorities to create dedicated helplines for children facing stigma or bullying by virtue of belonging to a same-sex family unit;

f. Directions to the relevant authorities to set aside resources and create infrastructure for counselling and psychological assistance to children suffering from bullying or victimization on account of belonging to same-sex family units.

The application has been drawn by Advocate Nisha Tomar, Advocate Gautam Bhatia, and has been filed by AOR Abhishek Manchanda. 

The Union Government has filed a counter-affidavit opposing judicial intervention to grant legal recognition for same-sex marriages.

Click Here To Read/Download Application