Adoption rights of same-sex couples Within the Hindu community
Author – Bhavika Khetrapal, 4th Year – BALLB (S.S. Khanna Girls’ Degree College, University of Allahabad)
Abstract
In India, adoption is governed predominantly by the Hindu Adoption and Maintenance Act (HAMA) of 1956. This legislation outlines the legal framework for adoption but does not explicitly address the needs or rights of same-sex couples. Under HAMA, adoption is primarily available to heterosexual couples and single individuals, leaving same-sex couples without a clear, legal pathway to adopt.
The landscape of LGBTQ+ rights in India has undergone significant changes in recent years, highlighted by the Supreme Court’s landmark 2018 ruling decriminalizing same-sex relationships under Section 377 of the Indian Penal Code. This ruling marked a critical step towards the broader recognition of LGBTQ+ rights but did not extend to resolving the complexities of adoption rights for same-sex couples. The judicial system’s incremental approach to LGBTQ+ issues means that while decriminalization was a milestone, comprehensive legal reforms addressing adoption remain pending.
Social attitudes towards same-sex couples in the Hindu community vary considerably. Urban areas, influenced by progressive views and greater exposure to LGBTQ+ issues, tend to exhibit more acceptance and support for same-sex relationships and families. Conversely, traditional and rural regions often maintain conservative views, which can significantly impact the social acceptance and practical experiences of same-sex couples seeking to adopt.
Keywords: Adoption, LGBTQ+, Decriminalization, Acceptance, Repercussions, Hindu society, Legal Status.
INTRODUCTION
The acceptance and recognition of same-sex couples within the Hindu community have been significantly told by a combination of factors, including indigenous vittles’, evolving societal stations, and legal developments. In India, where Hinduism is the predominant religion, this metamorphosis has been particularly noteworthy. This preface will give an overview of how indigenous vittles’ have played a vital part in shaping the acceptance and recognition of same-sex couples in the Hindu community. Literary Perspective Hinduism, as one of the world’s oldest persuasions, has a rich history that includes different views on mortal fornication and connections. Traditionally, Hindu society has been characterized by its heteronormative structure, emphasizing gravidity and family values. still, over time, these traditional morals have evolved to accommodate further inclusive and progressive perspectives. Indigenous Framework the Indian Constitution, espoused in 1950, laid the foundation for a temporal and inclusive society. It elevated principles of equivalency, freedom, and non-discrimination, which are essential for the protection of individual rights and liberties. Composition 15 of the Indian Constitution explicitly prohibits demarcation on grounds of religion, race, estate, sex, or place of birth. Composition 21 upholds the right to life and particular liberty, which includes the right to sequestration and autonomy. Landmark Supreme Court Judgments the Indian bar has played a vital part in interpreting and administering indigenous vittles to advance LGBTQ rights. The watershed moment came in 2018 when the Supreme Court of India, in the case of Navtej Singh Johar v. Union of India[1] interdicted homosexuality by striking down Section 377 of the Indian Penal Code. This corner judgment affirmed that consensual same-sex connections were a matter of particular liberty and equivalency, forcefully establishing the legal foundation for feting LGBTQ rights within the Hindu community and society at large. Societal stations as legal walls were disassembled, there has been a notable shift in societal stations toward LGBTQ individuals and same-sex couples. While traditional beliefs may still prevail in some diggings, numerous Hindus have embraced a more inclusive and accepting perspective, aligning with the indigenous principles of equivalency and discrimination. Progressive Interpretations of Hinduism Some scholars and spiritual leaders within the Hindu community have begun to offer progressive interpretations of Hindu textbooks and training, arguing that Hinduism’s core principles of love, compassion, and respect for all living beings are innately probative of LGBTQ rights and same-sex connections. The acceptance and recognition of same-sex couples in the Hindu community have been told by indigenous vittles that emphasize equivalency and non-discrimination, corner Supreme Court judgments that interdicted homosexuality, changing societal stations, and evolving interpretations of Hinduism. While challenges and varying shoes persist, the legal and social geography in India is gradationally getting more inclusive and affirming of LGBTQ rights, including those within the Hindu faith.
Freedom of Expression and Association: The Constitution’s protection of freedom of expression and association (Article 19) allows individuals and organizations to advocate for LGBTQ+ rights and create spaces for dialogue and support within the Hindu community. Right to Privacy and Autonomy: The recognition of the right to privacy has empowered individuals to make choices about their relationships, including those in the LGBTQ+ community. It has encouraged conversations about personal autonomy and the right to love whomever one chooses.
Hindu Society And LGBTQ
Diversity within Hinduism isn’t a monolithic religion, and it encompasses a wide range of beliefs and practices. Different sets, seminaries of study, and regions may have varying views on same-sex connections. Traditional Hindu textbooks Some traditional Hindu textbooks, similar to the Kama Sutra, do mention same-sex magnets and connections in a nonjudgmental or neutral way. still, other Hindu Holy Writs and narratives may hold further conservative views.
Cultural and Societal Factors: Acceptance of same-sex couples can also depend on artistic and societal factors within specific regions and communities. In some corridors of India, there’s growing acceptance and support for LGBTQ rights, while in others, traditional morals and conservative stations may prevail.
Legal Status: The legal status of same-sex connections in India has evolved over time. In 2018, the Supreme Court of India interdicted consensual same-sex connections by striking down Section 377 of the Indian Penal Code, which criminalized homosexuality. This was a significant corner for LGBTQ rights in the country. Activism and Advocacy LGBTQ activists and associations in India have been working to raise mindfulness, promote acceptance, and fight for equal rights for same-sex couples. Their sweat has contributed to changing stations in some corridors of the country.
Religious Leaders and Institutions: Views on same-sex connections can also be told by the station of religious leaders and institutions. Some Hindu leaders and associations have expressed support for LGBTQ rights, while others remain conservative on this issue. Changing stations toward same-sex couples are evolving encyclopaedically, and this includes within Hindu society. youngish generations, in particular, tend to be more accepting of LGBTQ individualities and connections.
It’s important to note that stations can change over time, and public opinion can vary extensively indeed within the same religious or artistic group. also, my knowledge is grounded on information available over to September 2021, and there may have been further developments or changes in stations and programs since also. For the most current information, it’s judicious to consult estimable sources or associations concentrated on LGBTQ rights in India and within Hindu communities.
The organization played a frontline role in a long legal battle to strike down the law criminalizing gay relationships. While same-sex marriages may still not be accepted by many in a society that is still traditional, petitioners have argued that societal acceptance will follow once the law shows the way.
“There are social transformations happening and this is reflected in popular culture. For example, increasingly one sees very sensitive depictions of gay couples in movies and shows on streaming platforms. This shows us that people are ready for such a step,” according to Saxena. Chakraborty found that in the last five years, discussions about homosexuality have come more easily, whether with families or friends “People don’t say the word gay not very quietly anymore. People are very confident to start a conversation about it. And I am not just talking about the LGBTQ community, I am talking about everybody in general.”
Vaibhav Jain & Anr. Vs. Union of India & Anr.[2]
In the below case, two separate desires were filed by two same-sex couples, and the same was entertained by the Delhi court through virtual hail. One solicitation was filed by two women seeking to be suitable to perform homogenous marriage in India under the Special Marriage Act and the other was filed by two men in order to seek enrolment of their marriage in the USA, as the same was being denied under The Foreign Marriage Act. The court listed both desires contemporaneously.
The court said that the conception of marriage originates from the customary laws and they don’t fete same-sex marriage, and the word marriage is defined nowhere, neither in The Special Marriage Act nor in The Foreign Marriage Act. Following this, the court mentioned that formerly same-sex marriage is honored under customary laws, it would be honored under The Special Marriage Act and The Foreign Marriage Act.
The court further mentioned that the Special Marriage Act deals with inter-estate or inter-faith marriages, and was only legislated because there were no customs for the same, in response to this the leaders said that they weren’t seeking relief from similar grounds, but under laws like that of SMA and FMA, they mentioned that by not allowing the women to marry are hindering their rights like that of family insurance, etc., and therefore violates article 21 of the constitution. Also, the men were denied the enrolment of their marriage by the Indian consulate as they were of the same sex, violating their rights mentioned under article 14, 15,19, and 20 which was held guaranteed to LGBTQ in Navtej Singh case. Therefore, the leaders demanded to declare the SMA unconstitutional as it doesn’t allow same-sex marriage, but the High Court took Centre stage against them as there’s no provision for same-sex marriage until now in India. So as of now, we’ve understood that there’s no chance of recognition of same-sex marriage, praised abroad. But the laws are bound to change, emendations are subject to be, the decriminalization of section 377 was indeed the first suggestion towards it. Hopefully, in the coming times, India will be one of the countries to accept homogenous marriages socially and religiously.
Matam Gangabhavani, vs. State Of Andhra Pradesh [3]
The legal position was thus summarised by the judge: reservation in public posts was sanctioned by the constitution and mandated by the Supreme Court’s directions. However, it was to be vertical in nature. Horizontal reservation was an incorrect implementation of the NALSA directives. At the same time, failure to provide vertical reservations was a violation of the Supreme Court directive for which contempt proceedings could be in order. This is even though the Transgender Persons (Protection of Rights) Act, 2019[4] does not provide for reservation for transgender persons in public appointments. To this extent, this case, following the case of Sumana Pramanik implicitly held that unlegislated Supreme Court directions continue to hold the status of law
The court concluded that the job advertisement was not invalid (despite its own equality analysis above). It directed the State to conduct a study on the status of transgender persons in Andhra Pradesh and to implement the reservation direction of the Supreme Court in three months.
Adoption Rights in a Foreign Jurisdiction
In numerous foreign nations, rights to adoption are still denied to same-sex couples. No matter the child’s gender or sexual orientation, adoptions in India are permitted under laws like the HAMA[5] and JJ Act[6] However, by ignoring their rights to adoption, same-sex couples are subject to discrimination under the law. However, some of the more liberal nations in the EU, including the U.S. S, South Africa have passed progressive legislation pertaining to same-sex couple rights. Contrary to their Indian counterparts, even the United Kingdom, which had passed a law-making homosexuality illegal in India, has legalized same-sex couples adopting together.
Europe
A nation may experience several legal inconsistencies as a result of enacting another nation’s law as its own. For instance, a same-sex marriage performed in accordance with Dutch, Belgian, or Spanish law is not recognized in the UK. In such situations, the spouses are assumed to be in a civil partnership. As a result, the European Court of Human Rights is essential to defending the rights to respect for the family, life, marriage, and protection from discrimination based on sexual orientation within the European Union. Adoption-related discrimination on the basis of sexual orientation is forbidden by the European Convention on Human Rights in the Member States. Parental rights for the LGBTQ community in Europe have changed as a result of B v. France (2008). Salgueiro da Silva Mouta v. United States, which rejected the stance taken in earlier decisions, is an example. In the cases of E. v. Portugal (1999) and Frette v. France (2002), where parental and adoption rights were restricted because of sexual orientation, the ECHR upheld these restrictions. According to the Convention for the Protection of Human Rights and Fundamental Freedoms, B v. France required that domestic authorities refrain from making distinctions based on sexual orientation in adoption proceedings. This was done by applying the “best interest of the child” principle. The European Convention on the Adoption of Children promotes a broader definition of the family and outlaws’ discrimination generally, further bolstering its support for same-sex families.
America’s United States
The American Constitution’s value of individual liberty has been upheld by the country as a whole. According to the American Constitution, same-sex couples were however denied a number of rights. Because of social rejection and legislative inaction, the judiciary actively participated in the elimination of the discrimination that same-sex couples endured. In De Boer v. Snyder (2014), the United States Court of Appeals for the Sixth Circuit ruled that the Michigan State Law banning same-sex marriages and joint adoption was unconstitutional. Obergefel v. Hodges (2015), a well-known case in which the U.S. The Supreme Court of the United States ruled that discriminating against homosexuals is against the spirit of the Constitution and that everyone in society has the same value for individual liberty. As a result of this decision, numerous legal rulings and pieces of legislation that support adoption for same-sex couples have been passed.
Same-sex Couples Adopting and Parenting in India
Presently, same-sex couples aren’t allowed to borrow children in India. The relinquishment laws in India only fete heterosexual couples as eligible for relinquishment. The relinquishment process is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015, which defines” couple” as a “wedded man and woman” who have been living together for at least two times. still, the Supreme Court of India has conceded the rights of LGBTQ individualities and has honored that they’re entitled to equal protection under the law. In a corner judgment in 2018, the court ruled that the right to sexual exposure is an integral part of the right to sequestration and quality guaranteed by the Indian Constitution. This ruling paved the way for the decriminalization of homosexuality in India.
In practice, the lack of a clear legal frame for homosexual relinquishment has redounded in significant challenges for homosexual couples seeking to borrow children in India. Relinquishment agencies and officers may distinguish against homosexual couples during the relinquishment process, citing a lack of legal vittles that allow them to consider homosexual couples for relinquishment. In 2016, a homosexual couple, in the case of Shivy and Aditya vs The State, approached the Bombay[7] High Court to borrow a child. The couple had been in a married relationship for numerous times and wished to borrow a child, but their operation was rejected by the relinquishment agency. The couple argued that there was no legal bar on homosexual relinquishment in India and that they should be allowed to borrow. The Bombay High Court ruled in their Favor and held that the relinquishment agency’s decision was discriminative and arbitrary.
However, this case did not set a binding precedent, and the legal status of homosexual adoption remains ambiguous. Despite the ruling in Shivy case, adoption agencies and officials continue to exercise their discretion to reject homosexual couples’ applications. This has resulted in significant challenges for homosexual couples seeking to adopt children in India.
In 2009, the Delhi High Court issued a landmark ruling allowing same-sex couples to adopt children in India. However, the decision was later overturned by the Supreme Court, which upheld the legality of Section 377 of the Indian Penal Code, which criminalizes homosexuality in 2017, the Ministry of Women and Child Development released draft guidelines for adoption that did not explicitly prohibit same-sex couples from adopting. However, the final guidelines released in 2018 only recognized heterosexual couples as eligible to adopt.
Despite the legal challenges, there have been several instances of same-sex couples successfully adopting children in India. For example, in 2019, a gay couple from Spain was granted permission to adopt a child from India after a two-year legal battle.
The current legal status of adoption by homosexual couples in India is uncertain. Although the legal framework does not explicitly prohibit homosexual adoption, the lack of a clear legal framework allows adoption agencies and officials to discriminate against homosexual couples during the adoption process. There is a need for a clear legal framework that provides equal opportunities and rights to all prospective adoptive parents, regardless of their sexual orientation.
However, adoption by homosexual couple in India follows the same legal process as for a heterosexual couple.
Constitutional provisions influenced the acceptance and recognition
Main points Constitution of India: The Indian Constitution guarantees certain fundamental rights to all citizens, including the right to equality (Article 14) and the right to life and personal liberty (Article 21). These fundamental rights have played a crucial role in legal discussions around LGBTQ+ rights, including adoption rights. The Supreme Court of India, in its landmark judgment in Navtej Singh Johar v. Union of India (2018), decriminalized consensual same-sex relations, citing these constitutional provisions
The Juvenile Justice (Care and Protection of Children) Act, 2015: This Act governs the adoption of children in India. It does not explicitly address the issue of adoption by same-sex couples, but it emphasizes the best interests of the child as the paramount consideration in adoption cases. The principles of non-discrimination and the child’s welfare, as enshrined in this Act, provide a legal basis for same-sex couples to seek adoption rights.
Landmark Court Decisions: While the Indian legal system has not explicitly recognized same-sex couples’ adoption rights, several court decisions have expanded the scope of LGBTQ+ rights. The aforementioned Navtej Singh Johar case was a significant step forward. Additionally, the Delhi High Court, in a 2009 judgment, recognized the right of a same-sex couple to adopt a child, emphasizing the best interests of the child.
Public Awareness and Advocacy: Civil society organizations, LGBTQ+ activists, and allies have played a crucial role in raising awareness and advocating for the rights of same-sex couples, including adoption rights. Public opinion and advocacy efforts have been instrumental in shaping the legal landscape.
State-Level Policies: Adoption laws in India are subject to state-level regulations, and the acceptance of same-sex couples’ adoption rights can vary from state to state. Some states have been more progressive in recognizing these rights, while others may lag behind.
It’s important to note that the legal recognition of same-sex couples’ adoption rights is an evolving and complex issue in India. While there have been positive developments, challenges and variations in interpretation exist. Legal reforms, court decisions, and changing societal attitudes continue to shape the landscape for LGBTQ+ rights, including adoption rights, in India. To get the most current information on this topic, you should consult legal experts and keep up with developments in Indian law and policy
The acceptance and recognition of same-sex couples within the Hindu community can vary extensively, as Hinduism is a different religion with a range of beliefs and interpretations. still, there are certain indigenous vittles and legal developments in India that have had an impact on the recognition and rights of same-sex couples.
Section 377 of the Indian Penal Code (IPC) previous to September 2018, Section 377 of the IPC criminalized consensual sexual acts” against the order of nature,” including homosexual acts. The Supreme Court of India, in a corner judgment in September 2018, interdicted consensual homosexual acts between grown-ups. This decision marked a significant step toward fetching the rights of LGBTQ individuals, including those within the Hindu community.
Right to sequestration In August 2017, the Supreme Court of India honored the right to sequestration as an abecedarian right under the Indian Constitution. This decision laid the root for posterior legal developments related to LGBTQ rights, including the striking down of Section 377.
NALSA Judgment In 2014, the Supreme Court of India passed the National Legal Services Authority (NALSA) judgment, which honored the rights of transgender individuals and affirmed their right to identify their gender. While this judgment primarily concentrated on transgender rights, it contributed to the broader converse on gender and sexual exposure rights within the Hindu community.
Marriage Laws As of my last knowledge update in September 2021, same-sex marriage isn’t fairly honored in India. Hindu marriage laws, which govern Hindu marriages, don’t explicitly allow for same-sex unions. still, the legal recognition of same-sex marriages is a matter of ongoing debate and action, and there may have been developments in this regard since.
Public Perception and Social Change Indigenous vittles alone cannot completely impact social acceptance. Public perception, artistic morals, and religious beliefs also play a significant part in shaping the acceptance of same-sex couples within the Hindu community. While legal changes can give a foundation for lesser acceptance, achieving broader social recognition may take time.
It’s important to keep in mind that societal stations and legal developments can change over time, and the recognition of same-sex couples within the Hindu community may continue to evolve. also, different countries within India may have varying interpretations and executions of these legal vittles. thus, it’s judicious to consult the most recent legal and social developments for the most up-to-date information on this content.
Repercussions of the Legislative Drawbacks
In India, same-sex marriages are illegal; hence homosexual couples are unfit to borrow a child concertedly. The law prevents LGBTQ couples from espousing children together proving that they’re still not treated inversely in the eyes of the law. As a result, same-sex couples are restrained from espousing since the child shouldn’t be reared in an “inferior family”. What’s paradoxical, however, is that the law allows a child to be raised as an orphan without both parents rather than being raised by homosexual and trans couples. While LGBTQIA couples aren’t eligible to borrow, India’s orphan population is growing by the day. According to a new study by a transnational charity for orphaned and abandoned children, India presently has 20 million orphans, a number that’s anticipated to rise to 24 million by 2021. The maturity of orphanages gives abysmally shy service in the orphanage. The denial of relinquishment rights to members of the LGBTQ community harms the quality of these people since these demarcations are grounded on their sexual exposures and not on their capacity or merit as a parent.
Conclusion
The interpretation of marriage varies depending on different societies. Majorly it’s an institution which seeks to admit particular connections like family and sexual relationship of an existent. It’s easily visible that homosexuals face demarcation and dogmatism, and rejection from the normal society. The reasons perhaps particular or social. At present 29 out of 195 countries have legalized same-sex marriages. Still in India it seen as taboo as they’re called unholy and unnatural. Thani-discriminatory judgment in Naz Foundation and NALSA must be erected further for overruling Kaushal and achieving the recognition of same- sex marriages fairly as well as socially.
Still, also there’s great possibility of principle laid down in Naz Foundation case which prohibits demarcation grounded on sexual exposure will affirm prohibition if demarcation under Composition 15, If the judgment of Kaushal is overruled. Through colourful judgments like Navtej Singh Johar v. Union of India, Naz Foundation and NALSA bar have taken original but significant way for removing the smirch which is attached to LGBT community. and now it’s the turn of citizens of the country to address and apply the principles laid down in these judgments.
In order to ameliorate the relinquishment process for homosexual couples in India, there needs to be clearer legal guidelines and bettered societal acceptance. It’s important for the government and society to fete that homosexual couples are able of furnishing loving homes for children just as heterosexual couples are.
The legal frame for relinquishment by homosexual couples in India has been established, and the law doesn’t distinguish against prospective consanguineous parents on the base of their sexual exposure. still, social smirch and demarcation can still present challenges for homosexual couples looking to borrow.
While exploration shows that children raised by same-sex couples don’t differ significantly from those raised by contrary- sex couples, stations towards homosexuality can still lead to demarcation and prejudice against both the child and the consanguineous parents. Despite these challenges, numerous homosexual couples in India and around the world have successfully espoused and handed loving homes for children.
The progressive stance of recent judicial rulings, such as the decriminalization of same-sex relationships, indicates a shift towards greater recognition of LGBTQ+ rights. However, this shift has not yet been fully realized in adoption laws, which remain largely unchanged in this regard.
Social acceptance varies within the Hindu community, with urban areas generally exhibiting more progressive attitudes compared to traditional or rural regions. This disparity impacts the practical experiences of same-sex couples seeking to adopt.
Overall, while advocacy and legal challenges continue to push for greater inclusivity and reform, same-sex couples still face significant hurdles in the adoption process. The evolution of adoption rights for same-sex couples will likely depend on ongoing legal reforms, shifts in social attitudes, and continued advocacy for LGBTQ+ equality.
[1] AIR 2018 SC 4321;
[2] Vaibhav jain & Anr vs Union Of India & Anr on 14 October, 2020
[3] Matam Gangabhavani vs State Of Andhra Pradesh on 21 January, 2022
[4] Transgender Persons (Protection of Rights) Act 2019, Act No. 40 of 2019
[5] Hindu Adoptions and Maintenance Act 1956, Act No. 78 of 1956
[6] Juvenile Justice (Care and Protection of Children) Act 2000, Act No. 56 of 2000
[7] Shivy Sachdeva & Anr vs The State Of Maharashtra & Ors., Writ Petition No. 12144 of 2016 (Bombay High Court, 2019)
