LGBTQ+ Community Gears Up For Prolonged Battle For Right To Marry And Adopt

A banner bearing an LGBTQ+ slogan | Photo courtesy: Special arrangement

“I am a trans woman, and I married my trans partner Hrithik in Kerala in 2019. Since I cannot bear a child, Hrithik and I decided to adopt a baby. A friend even gave her infant to us, and we started taking care of the child in 2021, but soon we realised that we could not legally adopt the baby in India, and we had to give up the child, which caused us huge mental agony,” says Tripthi Shetty, a trans activist and a businesswoman from Kerala.

At the heart of the problem is that same-sex marriages do not have a legal sanction in India. Though same-sex couples can be in relationships, they cannot marry or adopt children. Trans couple Tripthi and Hrithik managed to get a marriage certificate from a local municipal office. However, Tripthi states that her marriage certificate shows her gender identity as a female and Hrithik’s as a male, even when the couple identifies themselves as transgender persons. Numerous LGBTQ+ couples in India have been forced to hide their gender identity in government records across the country.

This is a rights issue, not just a gender equality problem. This is an issue related to justice and access to it as a country’s legal system and government forces an entire community to hide behind a veil and not seek equality, a fundamental right of every Indian citizen.

Recently, the BJP-led government at the Centre expressed its opposition to giving legal sanction to same-sex marriages in the Supreme Court, claiming that the legislative understanding of marriage in the Indian statutory and personal law regime refers to the marriage between a biological man and a biological woman. The government also told the apex court that such recognition would “cause complete havoc with the delicate balance of the personal laws in the country and in accepted societal values”.

India’s LGBTQ+ activists have been batting for equal rights. They ask a few fundamental questions. Isn’t love genderless? If it’s okay to love and be in same-sex relationships, why is it not okay to marry? When the government speaks about “accepted societal values”, isn’t the LGBTQ+ community a part of the same society we live in?

As for Tripthi, her fight to adopt a child did not end after she gave up the child she so yearned to embrace into her life with Hrithik. She then tried approaching the central and state adoption regulatory agencies but was shown the door. The trans couple gave their consent to the Kerala government’s organ donation programme, Mrithasanjeevani to donate their bodies after their death. “We have pledged to give our bodies for medical research after our death but while we are alive will the government not allow us to adopt a child and have a complete family,” asks Tripthi.

Tripthi adds, “The central government has an adoption authority called CARA - Central Adoption Resource Authority. The state governments have their own adoption authority named SARA, the State Adoption Resource Agency. We got stuck when we approached the adoption agency because we did not have a legal marriage certificate that these agencies could recognise."

In India, the adoption laws are governed by the Hindu Adoption and Maintenance Act 1956, the Guardianship and Wards Act 1890 and the Juvenile Justice (Care and Protection of Children) Act 2015. Section 5 (2) of the Adoption Regulations, 2017 in India very explicitly states that a) the consent of both spouses for the adoption shall be required in case of a married couple; b) a single female can adopt a child of any gender; c) a single male shall not be eligible to adopt a girl child.

After the Centre opposed the legalisation of same-sex marriages, the Delhi Commission for Protection of Child Rights (DCPCR) filed an intervention application last week before the Supreme Court seeking the recognition for same-sex marriages under various statutory enactments such as the Special Marriage Act, the Foreign Marriage Act, the Hindu Marriage Act and certain other ancillary and related reliefs.

The DCPCR has contended before the apex court that multiple studies on same-sex parenting have demonstrated that same-sex couples can be good parents or not, in the same manner heterosexual parents can be good parents or not. Same-sex couples do not have any advantage or disadvantage with respect to being good or poor at parenting when compared to heterosexual couples.

“It is submitted that at present more than 50 countries allow same-sex couples to legally adopt children, wherein Israel and Lebanon are the only Asian countries that allow adoption for same-sex couples; in addition, there are 22 European and 16 American nations that allow the same,” the DCPCR’s application read. The commission requested the court to pass directions to the National and State Council for Education Research and Training (N/SCERT) to check and eliminate homophobic content in school textbooks.

“I have a house of my own. I earn enough. I can apply for adoption tomorrow, but at the end of the day, I am an openly queer person. I will be rejected. If the law changes, it will give us state protection. That is only the first step, but then there are so many other hurdles. The mindset of society needs to change. So, even if there is a positive verdict, nothing will change overnight for our community,” says Noor Enayat, LGBTQIA rights activist.

Another Kerala trans couple, Praveen and Rishana, who tied the knot on Valentine’s Day this year, have had their own struggles with adoption. Speaking to The Probe, Praveen says legalising same-sex marriages is just one of the many issues. Even if adoption rights are given to same-sex couples, he asks how many people would benefit from it.

“Rishana and I want to adopt a child as we can’t have our own biological child. However, the law doesn’t permit it. But having said that, even if adoption is allowed, how many trans couples can choose to adopt? The adoption rules are very convoluted and complicated in India. That apart, you need to have a house of your own, bank balance, and you need to qualify on several parameters. Transgender persons are from marginalised sections and have been facing social isolation and discrimination. So, either way, it’s going to be difficult for trans couples to adopt unless the government makes the adoption rules more accessible to people like us,” asserts Praveen.

India is still coming to terms with the idea of same-sex marriages. The Indian Psychiatric Society has stated that not allowing members of the LGBTQA community to marry amongst themselves or adopt children may lead to mental health issues. On the other hand, the Telangana Markazi Shia Ulema Council has opposed the legalisation of same-sex marriages in the Supreme Court, calling it an alien concept to India.  While some state governments are for it, the central government has voted against it. Conflicting and antithetical views have now been placed before the Supreme Court in the form of various petitions, which will be heard on April 18 by a five-judge bench.

Noor Enayat notes that the road may be rough and the journey tough for the members of the LGBTQ+ community. The legal battle may prolong for a few weeks or even months before the top court delivers its final verdict. “This issue stems from patriarchy. When you accept same-sex marriages, you are going against the very concept of patriarchy. If you look at the historic judgement in 2018 when the Supreme Court decriminalised Section 377 of the IPC, the court asked the government to implement many rules. It’s been almost five years now. What has the government done? So, even if there is a positive outcome in the present case, it still lies in the hands of the legislature to drive change and reform, which is very unlikely to happen with the present-day dispensation.”

Prema Sridevi is an Indian investigative journalist and Editor in Chief of The Probe. In a career spanning 20 years, Sridevi has worked with some of the top news brands in India and she specialises in stories related to accountability, transparency, corruption, misuse of public office, terrorism, internal security to name a few.