New Delhi [India], May 10 : National Commission for Protection of Child Rights (NCPCR) on Thursday told the Supreme Court that the entire architecture of laws is from the perspective of the welfare of the child being paramount and adoption is not an alternative to biological birth in families of heterosexual couples.
Appearing for NCPCR, Additional Solicitor General Aishwarya Bhati appearing for the National Commission for Protection of child rights (NCPCR), Ministry of Women and Child Development and CARA apprised the court about the repercussions on the child if adoption right is given to the same-sex couple.
She said that adoption is not an alternative to biological birth in families of heterosexual
couples.
She told the court that adoption is a mechsm to find the best possible families for unfortunate children who cannot be raised and reared by their biological parents and families.
"The entire architecture of adoption is child centric and is carefully crafted to ensure that each orphaned, abandoned or surrendered child is matched and integrated into the families of prospective parents by following a stringent regulatory mechsm, covering age, gender; physical, mental, emotional & financial capacity etc. of the prospective adoptive parents," she said.
ASG Bhati said that Children need love and protection and children will suffer the most,
if the spouse is read in a special marriage act.
During the hearing, CJI DY Chandrachud said that the law permits a single parent to adopt a child. Bhati replied that adoption is not an alternative for childbirth.
CJI raised the point when a mother passes away, the father takes care of the child. The court also raised various issues related to adoption.
Bhati informed the court that currently a single man cannot adopt a girl child and a single woman cannot adopt a male child. She also apprised the court of the facts that there are 30,000 registered parents but just 1500 children available in the pool for adoption as of date.
She also submitted that assistance was taken from Ministries and CARA. She submitted that first, the basic structure of a marriage is a union of man and woman. Second, gender fluidity is impermissible. Third, the welfare of the child is paramount and cannot be opened up to compromise and uncertainty. She submitted that the entire architecture of laws is from the perspective of the welfare of the child being paramount.
She submitted that a child can only be naturally born to a heterosexual couple and that is the ideal model to bring them up.
Appearing for respondents' side Senior Advocate Mnder Singh submitted that Section 4 of the Special Marriage Act, 1954 should not be interpreted in a manner which allows same-sex marriage as it would have an impact on concomitant rights. Thereafter, he submitted that the personal laws of Christians, Muslims and Hindus allow divorce on the ground of impotency i.e., inability to procreate. Therefore, procreation is the very foundation and fundamental aspect of marriage.
Appearing for the respondents' side, Senior Advocate Atmaram Nadkarni, submitted that the concept of marriage in Indian society is an institution by itself. Thereafter, Senior Advocate Msha Lavkumar submitted that social institutions consist largely of interlocking sets of ideas that regulate or affect the way people actually understand and behave across interpersonal relationships. Another lawyer for the respondent's side, advocate J Sai Deepak argued that these are issues of legislative competence with multiple stakeholders and society has a role to play on this issue. Even with respect to SMA, society has a right to participate, he said.
Thereafter Solicitor General gave his concluding remarks and highlighted the issues surrounding any declaration if passed by the Court. He submitted that the declaration, if any would bind every individual in the country who is not before the Court. Solicitor General thereafter submitted that whenever a declaration is made by the legislature, the legislature has the power to regulate the fall out However, the Court would not be able to foresee and deal with that.
Thereafter, as for rejoinder submissions, Senior Advocate Abhishek Manu Singhvi, appearing for the petitioner, submitted that a constitution-compliant reading of the SMA is within the bounds of legitimate statutory interpretation.
Thereafter, Senior Advocate Mukul Rohtagi, appearing for the petitioner, submitted as by way of a suggestion that in case the Bench is not keen on interpreting the Special Marriage Act, 1954, there was another alternative for a homosexual couple. They must have some document to enforce their rights such as rights for insurance, visa and immigration. In that case, the Court may consider declaring recognition through an affidavit by a same-sex couple wherein they declare each other as spouse, which is registered under Section 18 (f) of the Registration Act, 1908, he said.
The arguements in the matter will be continued tomorrow also.
Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage. One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQIA+ community to marry any person of their choice.
According to one of the petitions, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said, "The exercise of which ought to be insulated from the disdain of legislative and popular majorities."
The petitioners, further, asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.
One of the petitions was represented by Senior Advocates Mukul Rohatgi and Saurabh Kirpal briefed by a team of advocates from Karanjawala and Co.
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