'What Happens When A Child Of Heterosexual Couple Sees Domestic Violence?': CJI DY Chandrachud On Concerns Over Adoption By Queer Couples

“What happens when a child of a heterosexual couple sees domestic violence? Will that child grow up in a normal atmosphere, after seeing their father being an alcoholic, coming home and thrashing the mother every night, and asking for money for alcohol? So much for heterosexuals.... This is why, as I said, there are no absolutes", CJI said while adding, "I say this at the risk of being trolled".

"This has become the name of the game which the judges have to confront. Answers to what say in the court are in the trolls, not in the court", CJI added referring to certain extreme social media reactions to some of the observations made by him during the hearing.

A constitution bench comprising the chief justice, as well as Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, was hearing a batch of pleas for the legal recognition of same-sex marriage.

The CJI made the comments regarding same-sex couples raising children after looking at the evidence presented by senior advocate KV Viswanathan, appearing for transgender rights activist Zainab Patel, with respect to same-sex couples adopting children. Apart from urging the court to not look at marriage through the narrow lens of procreation, the senior counsel also pointed out that last year, in its hundred and eighteenth annual report, a Rajya Sabha parliamentary standing committee had recommended the formulation of a comprehensive law relating to adoption and maintenance that would harmonise the extant statutory enactments. “What is significant is that the parliamentary committee wanted the new legislation to cover the LGBTQIA community as well,” Viswanathan told the bench.

Viswanathan also referred to a case from Hawai’i in the United States, in which, on remand from the Supreme Court, a study was conducted that empirically established that “there was no evidence to show that gay, lesbian and same-sex couples did not provide children the safety, security and the upbringing they require”. He added, “Long back in our country, all that was required under the law was the welfare of the child. If that condition is met, it does not matter whether the couple is heterosexual and homosexual.” The senior counsel further emphasised that the empirical data pointed at the inescapable conclusion that same-sex couples were just as ‘well-suited’ to raise children as heterosexual couples.

Yesterday, while discussing the consequential rights marriage bestowed upon individuals, including that of the adoption of children, the Chief Justice observed that one of the two people in a same-sex relationship would be allowed to adopt children as a single parent even under the existing legal infrastructure. subject to the other requirements set out under the relevant law. By saying this, he questioned the soundness of the argument about the psychological impact of being raised by parents of the same sex on children and the suitability of such a couple to be parents. “Today, even if a couple is in a gay relationship or a lesbian relationship, one of them can still adopt. It is just that the child loses the benefits of parenthood of both the parents.”

Earlier this year, during a hearing that culminated in an order referring a batch of petitions challenging various Indian statutory provisions, including those of the Hindu Marriage Act, Special Marriage Act, and Foreign Marriage Act to a constitution bench, Solicitor-General for India had told a bench headed by Chief Justice Chandrachud, “The Parliament would have to first examine what would be the psychology of a child who has seen either two men as parents or two women as parents and has not been reared by a father and a mother.” CJI Chandrachud had then responded by saying that a child raised by a same-sex couple need not necessarily be homosexual.

The stance against marriage equality is replete with arguments that draw on an alleged ontological contrast between heterosexual couples and homosexual couples, with one of the purported differences being their ability and fitness to raise children. 

Interestingly, while the National Commission for Protection of Child Rights has raised concerns about adoption of children by same-sex couples, the Delhi Commission for Protection of Child Rights has taken a progressive stance supporting adoption rights for such couples.

Case Title

Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022 and connected cases