The struggle of the LGBTQ community has been a long drawn out battle for rights and recognition. Following the judgment of the Supreme Court in Navtej Singh Johar v. Union of India, wherein the Apex Court read down Section 377 to decriminalise all consensual sex between adults, including homosexual sex, several Constitutional Courts have come out with progressive judgments which have bolstered awareness and issues surrounding the community. While society comes to terms with the community and despite having the legal recognition and protection of the law, members of the community struggle with basic rights such as those relating to matrimony and adoption. In this article, we will attempt to decode the legal framework of adoption in India and the provisions for LGBTQ members within such a framework.
Juvenile Justice Act, 2015
Adoption is defined under Section 2(2) of The Juvenile Justice (Care And Protection Of Children) Act, 2015 as the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of his adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.
Section 57, which provides for eligibility of Prospective Adoptive Parents (PAPs), adopts in addition to the requirements listed the criteria for adoption under regulations framed by the authority, i.e. the Central Adoption Resource Authority. By virtue of the Adoption Regulations, 2017, now a couple who doesn’t have at least 2 years of solid marital relationship.
Hindu Adoption and Maintenance Act, 1956
Chapter II (Ss 5-17) of the Hindu Adoption and Maintenance Act, 1956 (hereinafter referred to as ‘HAMA’) deals with Adoptions. Section 6 of the Act lays down the requisites for adoption. The Section provides that no adoption shall be valid unless:
- the person adopting has the capacity, and also the right, to take in adoption;
- the person giving in adoption has the capacity to do so;
 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
- the person adopted is capable of being taken in adoption; and
- the adoption is made in compliance with the other conditions mentioned in this Chapter.
Section 7 and Section 8 of the Act provide the capacity of male and female to take in adoption but there is no provision for third genders. A male or female can adopt if he or she is of sound mind and is not a minor who has the capacity to take on a daughter in adoption. If the male has a wife, he shall take her consent and if the female has a husband, she shall take his consent unless the husband or wife is declared to be of unsound mind, has completely renounced the world, or has ceased to be a Hindu. However, the Act fails to deal with LGBTQ couples. There are certain other conditions laid down in Section 11 of the Act. If the adoption is of a son, then the adoptive mother or father should not have a son, son’s son or son’s son’s son during adoption. If it is a daughter then the adoptive parents should not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption. Similarly, while adopting a child of the opposite gender, such child should be at least twenty-one years older than the person who wishes to adopt.
Adoption Regulations, 2017
Established under the Ministry of Women and Children, The Central Adoption Resource Authority serves as the nodal point to oversee and regulate adoptions, both domestic and international. The body was established in 2003 after India adopted the Hague Convention on Intercountry Adoption, 1993. Under Section 68(c) of the Juvenile Justice (Care and Protection of Children) Act, 2015, the body has been empowered to frame rules and regulations, in accordance with which it has notified the Adoption Regulations of 2017. The Regulations are a lot more stringent in comparison to HAMA. As opposed to HAMA, the Regulations go above and beyond and prohibit a single man from adopting a female child irrespective of the age difference prescribed under HAMA.
To summarize, while an individual member of the LGBTQ community may adopt a child under the existing framework, LGBTQ couples will not be able to adopt and co-parent a child as a couple as the law fails to recognize the validity of a marriage of a same sex couple and since existing laws and regulations mandate the existence of a marital relationship, they will be unable to do so.
However, the judicial institution is keeping pace with changes in society. In Arun Kumar Sreeja v. Inspector General of Registration, Arun Kumar got married to a transwoman Sreeja, where the registrar refused to register their marriage. In disposing their petition before it, the Madras High Court held the marriage was valid and transgender persons had the right to decide their self-identified gender. The right to marry a person of one’s own choice is also considered as an integral part of Article 21 of the Constitution of India. Therefore, the Court held that the non-registration of their marriage would amount to a violation of Articles 14, 19(1)(a), 21, and 25 of the Constitution of India.
Since there is no provision for recognizing the validity of same-sex marriages in India, existing laws ought to be amended to provide for the same. Since most legislations governing adoptions were enacted prior to the judgment of the Supreme Court in Navtej Singh Johar, they fail to recognize or provide for their rights. However, the law must be harmoniously amended and interpreted to keep pace with the changes in society and community.
 NALSA v. Union of India, (2014) 5 SCC 438,
 Shafin Jahan v. Asokan K.M., 2018 SCC Online 343