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The Right Of Same Sex Couples To Adopt A Child

The right of same-sex couples to adopt a child is a subject of fierce debates globally. Some countries fully recognize the rights of same-sex couples to adopt a child, while others are still contemplating it.

Though same-sex marriage has not yet been recognized by the Indian Legislature, a significant step has been taken in this direction by the Hon'ble Supreme Court of India in the Judgement namely Navtej Singh V. Union of India, where Section 377 of the Indian Penal Code (IPC) has been struck down by the Supreme Court.

This was a landmark judgment in India's legal history, as it decriminalized homosexuality and recognized the rights of the LGBTQ community. The

afore mentioned Judgement struck down the penal consequences of Section 377 India Penal Code, in relation to consensual sex between two adults. It was great relief to LGBTQ community. But right to adopt a child for such same sex couple still remains a distance possibility.

As per the Indian law, adoption is governed by the Juvenile Justice (Care and Protection of Children) Act, 2015, and Hindu Adoption and Maintenance Act, 1956. Neither of the acts specifically prohibits same-sex couples from adopting a child. However, there is no mention of same-sex couples either, creating a legal vacuum that leaves the matter open to interpretation.

Section 2(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, defines adoption as the process through which the adopted child is permanently separated from his biological parent or guardian and becomes the legitimate child of his adoptive parents. In other words, adoption creates a permanent legal relationship between the adoptive parent and the adopted child.

On the other hand, the Hindu Adoption and Maintenance Act, 1956, governs adoption rights for Hindus only. Section 8 of the Act provides that any Hindu male who is of sound mind and is not a minor may adopt a child. However, if the adoptive parent is a married couple, both should give their consent to the adoption.

The lack of clarity regarding same-sex couples' adoption rights in India has led to a series of court battles. In April 2019, the Madras High Court held that a lesbian couple could not be denied the right to parent a child merely because of their sexual orientation.

The court directed the Tamil Nadu State government to consider their application for adoption as per the guidelines. The case arose from the petition filed by the couple seeking to adopt a child.

The couple had married in the United States and returned to India to start a family. The court observed that the Juvenile Justice (Care and Protection of Children) Act did not bar same-sex couples from adopting a child.

This Judgement came in the year 2019, titled as Arun Kumar v Inspector General of Registration, Tamil Nadu , where by the Hon'ble High Court of Madras has interpreted the term bride to include the transwoman also.

However, in another case, the Karnataka High Court held that a gay couple could not be granted the right to adopt a child. The court refused to consider their plea, citing that the Indian law did not recognize same-sex marriage.

The case arose when two American men, in a committed relationship, sought to adopt a child through surrogacy in India. The court observed that the couple could not be granted the right to adopt the child as the Indian law did not recognize same-sex marriage.

The contrasting judgements of the Madras High Court and the Karnataka High Court highlight the conflicting nature of the Indian law regarding same-sex couple's adoption rights.

Internationally, many countries have already granted the right of adoption to same-sex couples. In the United States, same-sex marriage was legalized in 2015, granting same-sex couples the legal right to adopt a child.

In Canada, same-sex couples have been legally permitted to adopt a child since 1999. In Germany, same-sex couples have been granted the right to adopt a child since 2017.

In Australia, the Parliament passed a law in 2017, legalizing same-sex marriage, granting same-sex couples the right of adoption. Progress has been slower in some countries like Italy, where same-sex couples are still prohibited from adopting a child.

Live-in relationships have also become more socially acceptable in India in recent years, which is a positive development. However, the question remains as to whether same-sex couples should be allowed to adopt children or not. This issue has generated a lot of debate and controversy in India, with proponents and opponents presenting arguments for their respective positions.

The primary argument against same-sex couples adopting children is that children need both a mother and a father figure to grow up in a balanced and healthy environment.

Opponents of same-sex adoption also argue that it goes against Indian cultural values and traditions. However, there is no empirical evidence to support these claims, and they are based on stereotypes and prejudice.

On the other hand, proponents of same-sex adoption argue that every individual, regardless of their sexual orientation, should have the right to adopt a child if they can provide a loving and nurturing environment for the child.

There is no evidence to suggest that same-sex parents are any less capable of raising children than opposite-sex parents. Moreover, denying same-sex couples the right to adopt is a violation of their fundamental human rights.

The right of same-sex couples to adopt a child remains a contentious issue, with debates raging on its legality and morality. India's legal system lacks clarity on this issue, leading to varying interpretations and court battles. While some courts have upheld the right of same-sex couples to adopt a child, others have denied it.

In light of the international trend towards granting the right of adoption to same-sex couples, India may need to revisit its laws to provide clarity on this issue.

Though India has made significant progress in recent years in recognizing the rights of the LGBTQ community. However, the societal attitudes towards same-sex relationships and adoption are still evolving. This is one aspect of matter. The another aspect of this issue is that making laws is one thing, but changing societal attitudes is another.

For instance, the Sati system, also known as the practice of widow burning or self-immolation, was a deeply ingrained and longstanding cultural practice in India. Raja Ram Mohan Roy's efforts to abolish the Sati system were met with resistance from various sections of the Indian society.

Through these efforts, Raja Ram Mohan Roy was able to gradually persuade the Indian society to accept the reform of the Sati system. In 1829, the British Governor-General Lord William Bentick passed a law banning the practice of Sati, which was met with widespread protests and violent reactions from the traditionalists.

However, over time, the ban was enforced and gradually accepted by most parts of the society, leading to the eventual eradication of the Sati system. Before banning Sati Pratha, Raja Ram Mohan Roy had to make the Indian Society accept such a reform. Only after that did the ban of the Sati system become successful.

Similarly, in spite of the regulations outlined in India's Dowry Prohibition Act, passed in 1961, which forbids the giving or receiving by either party of any money, property, or any other valuable thing, the Dowry system continues to exist.

Other laws, such as the Domestic Violence Act of 2005 and the Protection of Women Against Sexual Harassment in the Workplace Act 2013, have been put in place to address aspects of the Dowry system, but they have proved futile in stopping it.

Until society acknowledges the devastating effects of this tradition and the need to condemn it, the Dowry system will persist. It ultimately requires a change in attitudes and beliefs, and it all starts with raising awareness and standing together to demand a better world where there is no room for dangerous systems like Dowry.

Therefore, it is essential to make the Indian society accept the rights of same-sex couples to adopt a child, and merely making laws will not serve the purpose. It is crucial to start a dialogue and raise awareness about the positive aspects of same-sex adoption and how it can benefit the child. This can be achieved through media campaigns, public debates, and community outreach programs.

In the present day scenario same-sex adoption appears to be a complex issue that requires careful consideration and dialogue. Every individual, regardless of their sexual orientation, should have the right to adopt a child if they can provide a loving and nurturing environment for the child.

It is crucial to change societal attitudes towards same-sex adoption through education, awareness, and dialogue. Only then can we truly create an inclusive society that respects the rights of all individuals. Without creating the acceptance and recognition from the Society, the law will remain toothless.

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