Authored By: Sweta
Manipal University Jaipur
Abstract
The continued denial of marriage, family, and adoption rights to LGBTQIA+ persons in India is often portrayed as a judicial failure. This article argues otherwise. Indian courts have consistently expanded the constitutional understanding of dignity, privacy, and equality; the real impasse lies in legislative inaction and social resistance. Despite judicial recognition of LGBTQIA+ identities, the denial of family rights reflects a deeper conflict between constitutional morality and entrenched heteronormative social structures.
Introduction: From Criminalisation to Constitutional Recognition
For decades, LGBTQIA+ persons in India remained criminalised, stigmatized, and legally invisible. Section 377 of the Indian Penal Code symbolised not merely a penalised sexual acts but was a systemic denial of dignity & social exclusion. For Hijra or Kinnar (non-binary people) communities, this marginalisation was layered—combining caste, class, gender nonconformity, and historical exclusion, often forcing them into begging or ritualised performances for survival.
The judicial journey toward recognition began with Naz Foundation v. NCT of Delhi (2009), which read constitutional morality into sexual autonomy. Although reversed in Suresh Kumar Koushal v. Naz Foundation (2013), the setback was corrected in Navtej Singh Johar v. Union of India (2018), where the Supreme Court unequivocally affirmed that sexual orientation is intrinsic to dignity and privacy under Article 21.
Subsequently, Justice K.S. Puttaswamy v. Union of India (2017) strengthened the right to privacy, and NALSA v. Union of India (2014) recognized gender identity as a constitutional right. However, in Supriyo v. Union of India (2023), while the Court declined to recognize same-sex marriage, it reiterated that discrimination against LGBTQIA+ persons is unconstitutional, emphasizing that legislative reform—not judicial abdication—is the missing link.
Spectrum, Social Invisibility, and Legal Misrecognition
Sexual orientation and gender identity exist on a spectrum, not within rigid binaries. Yet, Indian law continues to operate on fixed heterosexual assumptions. This disconnect results in social invisibility, where LGBTQIA+ persons exist in society but remain unacknowledged by law, and legal misrecognition, where identities are accepted in theory but denied substantive rights such as marriage, adoption, and inheritance.
LGBTQIA refers to people who identify as Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, and Asexual, representing diverse sexual orientations, gender identities, and experiences beyond traditional binaries.
Lesbian: A woman emotionally or sexually attracted to other women.
Gay: A person (mostly used for male) emotionally or sexually attracted to the same gender.
Bisexual: Attraction to both sexes.
Asexual: Experiences little or no sexual attraction.
Transgender: Gender identity differs from sex assigned at birth.
Queer/Questioning: Non-binary or exploring sexual or gender identity.
Intersex: A person born with variations in chromosomes, or anatomy that do not fit typical definitions of male or female bodies. Mostly due to two main chromosomal disorders XXY(Klinefelter’s syndrome) – having one extra X chromosome or XO(Turner’s Syndrome) – the absence of a second sex chromosome.
Intersex is the most interesting and suppressed, harassed and discriminated group of all, as the majority of the Hijars or Kinnars belong to this category.
For third-gender communities, this invisibility is paradoxical. Hijras are socially visible yet legally neglected, simultaneously hyper-visible and institutionally erased. Despite constitutional recognition, they remain excluded from family structures, inheritance, and adoption frameworks, reinforcing cycles of poverty and violence. Legal recognition without social and familial inclusion thus becomes hollow, offering identity without security.
Marriage and Adoption Rights: Legal Barriers and Heteronormative Assumptions
Marriage as a Gendered Legal Institution
Indian marriage laws, including the Hindu Marriage Act and the Special Marriage Act, are structured on explicit heterosexual assumptions, using gender-specific terms such as “husband” and “wife” reflects an assumption that marriage can only exist between a man and a woman. Marriage in India is not merely symbolic recognition but a foundational legal institution that unlocks rights relating to inheritance, maintenance, medical consent, taxation, and spousal decision-making-making its denial a substantive deprivation of legal security rather than a mere absence of recognition. Excluding LGBTQIA+ couples therefore denies access to an entire legal framework of protection and security, rather than a mere absence of recognition.
Rigid Gender Roles in Criminal and Family Law
These heterosexual assumptions extend beyond marriage. Domestic violence laws and rape provisions are framed on the presumption that harm can only flow from men to women, rendering male and non-binary victims legally invisible. Such frameworks are not only exclusionary but reveal how deeply law remains invested in rigid heterosexual roles, where deviation is considered legally inconceivable, leaving no space for diverse identities or experiences.
Family, Patriarchy, and the Feminist–LGBTQIA + Alliance
The Indian family structure has traditionally been rooted in heteronormative patriarchy, privileging male authority, reproductive roles, and rigid gender expectations. Marriage, within this framework, is not merely a personal relationship but a social institution designed to preserve lineage, regulate sexuality, and maintain hierarchical gender roles. Such a structure inevitably marginalizes those who deviate from prescribed norms of gender and sexuality. Feminism and the LGBTQIA+ movement intersect at this very fault line. Both challenge patriarchy’s control over bodies, choices, and family structures. Feminist resistance to compulsory heterosexuality and LGBTQIA+ resistance to exclusionary family norms arise from the same struggle against patriarchal dominance.
Adoption, Parenthood, and Child Welfare
A similar logic governs adoption. Under CARA and Juvenile Justice guidelines, adoption is structured around heterosexual couples, while LGBTQIA+ individuals may adopt only as single parents. This creates fractured parenthood, where a child’s legal security, inheritance, and caregiving rights are tied to one parent alone. International psychological and sociological research consistently demonstrates that a child’s well-being depends on stability, care and love, not the sexual orientation of parents—exposing societal prejudice, rather than LGBTQIA+ parenting, as the real risk. While concerns about social stigma and bullying by other children or community members are often raised, the solution to this problem is educating and creating awareness in society and next generation about acceptance and moral boundaries, the solution is not depriving them of their rights.
Social Landscape: Stigma, Shame, and Resistance
Family, Fear, and the Myth of Social Breakdown
A recurring argument against legal recognition of LGBTQIA+ relationships is that it would intensify family pressure, social exclusion & backlash, and moral stigma. Yet this reasoning reverses cause and effect. This fear misunderstands the relationship between law and society. Exclusion does not arise because of recognition; it persists because of its absence. Families often respond not only to belief systems but to legitimacy. When the law treats a relationship as unlawful or invisible, it authorizes shame. Legal recognition may not guarantee acceptance, but it creates the conditions under which acceptance becomes possible, allowing families to shift from silence and denial to support and dialogue.
Religion, Tradition, and Patriarchal Anxiety
Religious and traditional narratives opposing LGBTQIA+ inclusion are rarely neutral; they are deeply embedded in patriarchal structures that regulate sexuality, reproduction, and family hierarchy & lineage. The recognition of LGBTQIA+ relationships unsettles this order by challenging male authority, compulsory heterosexuality, and fixed gender roles. It is this disruption—rather than morality—that fuels resistance. Patriarchy perceives equality not as inclusion, but as loss of control.
Politics, Conservatism, and the Fear of Change
In electoral politics, conservative governments often sustain power by presenting social change as cultural decay. Conservatism, in itself, is not inherently regressive; social norms provide continuity and cohesion. However, when conservative political forces often mobilize these anxieties, framing change as a threat to cultural stability. While conservatism can preserve social cohesion, weaponizing it to exclude minorities leaves LGBTQIA+ persons legally vulnerable and socially abandoned.
At the same time, unrestrained liberalism can destabilize social meaning, as seen in extreme identity claims and the erosion of shared norms in other jurisdictions. The extreme identity claims in western countries (except these six terms) have gone so far that, that even the morally correct and educated people have started to side with heterosexual societal structure if it meant stopping this ridiculous identity claims.
The challenge, therefore, is not choosing between conservatism and liberalism, but finding balance. A society that refuses to adapt—legally and socially—produces isolation, discrimination, and violence. Law, in such moments, must act not as moral enforcer, but as a bridge between social reality and constitutional promise.
Towards Gender-Neutral Family Laws: Comparative Insights and the Path Forward
Experiences from jurisdictions such as the United States and the United Kingdom demonstrate that once patriarchy is decentered from family law, marriage and adoption can function as inclusive, gender-neutral institutions. Maintenance, alimony, inheritance, taxation benefits, and medical decision-making are determined not by gender but by economic capacity, caregiving roles, and mutual responsibility. In such frameworks, the spouse with greater financial means contributes maintenance regardless of gender; inheritance flows equally to all children; and spousal rights arise from partnership, not prescribed roles. Taiwan, the first Asian country to legalize same-sex marriage, illustrates how family law can expand without destabilizing social order, reinforcing that inclusion strengthens rather than erodes institutions.
International human rights instruments further support this shift. The Yogyakarta Principles, along with obligations under the ICCPR and the UDHR, affirm equality, dignity, and non-discrimination irrespective of sexual orientation or gender identity. India’s constitutional framework already echoes these values, even if legislative law has yet to internalize them.
The failure to translate these principles into domestic law is often misattributed to judicial reluctance. This framing is misplaced. Crucially, the absence of reform cannot be attributed to judicial failure. Courts interpret law; they do not legislate it. The responsibility to enact gender-neutral marriage and adoption laws rests with Parliament, which alone can amend statutes like the Hindu Marriage Act or the Special Marriage Act. Alongside legislative action, social reform groups play a vital role—educating communities, challenging prejudice, and providing support systems for those facing exclusion, abuse, or silence. Holding courts responsible for legislative silence misdirects accountability and weakens democratic processes.
Conclusion: Between Law, Love, and Humanity
The cost of legislative inaction, however, is borne by real people. Ultimately, the continued suffering of LGBTQIA+ persons is not abstract—it is lived, daily, and profound. Their exclusion questions the integrity of Articles 14 (equality before the law) and 21 (right to life and personal liberty) themselves.
The continued exclusion of LGBTQIA+ and third-gender persons from family rights is not an abstract legal issue; it is a lived crisis. It fractures families, legitimises violence, and questions the soul of constitution. Exclusion cannot be justified. Reform may begin with law or with society, but when the State hesitates, people must speak. Humanity must precede ideology. Love must precede fear. And the Constitution must remain a promise not only written, but fulfilled.
When the State hesitates, collective conscience must rise. Humanity must precede ideology. Dignity must outweigh discomfort. Love—unregulated by fear—must find its rightful place within the Constitution’s promise of equality. Only then can the unfinished promise of justice truly be fulfilled.
