Published On: March 12th 2026
Authored By: Charul Rathore
Indore Institute of Law
Abstract
This article examines the Supreme Court’s refusal in January 2025 to revisit Supriyo v. Union of India and analyses how this judicial finality has deepened the post-377 legal vacuum in relation to marriage, adoption, and maintenance rights for LGBTQ+ persons. While the Supreme Court’s reading down of Section 377 of the Indian Penal Code in Navtej Singh Johar v. Union of India (2018)[1] marked a pivotal constitutional shift by decriminalising consensual same-sex conduct and affirming sexual orientation as an intrinsic facet of identity protected under Articles 14, 15, 19, and 21 of the Constitution, decriminalisation alone did not translate into affirmative family law recognition. As a result, LGBTQ+ individuals continue to inhabit a doctrinal limbo where constitutional validation of identity coexists with statutory exclusion from core social institutions. Against this backdrop, the article dissects the post-377 legal vacuum through constitutional interpretation, statutory frameworks, judicial restraint, and legislative inaction, employing the doctrine of constitutional morality as an analytical lens to foreground dignity, pluralism, and substantive equality over transient social norms.
I. Constitutional Rights Framework
Articles 14, 15, 19, and 21 together form the constitutional framework against which post-377 claims must be assessed. Article 14 requires that state action meet standards of non-arbitrariness and substantive equality, and exclusions grounded solely in heterosexual norms struggle to satisfy this test when they perpetuate disadvantage without demonstrable harm. In Navtej Singh Johar v. Union of India, the Supreme Court expressly rejected majoritarian morality as a legitimate basis for denying constitutional protection to LGBTQ+ persons.
Article 15 further strengthens this framework by prohibiting discrimination on grounds of “sex,” a term that has been interpreted since NALSA v. Union of India (2014)[2] to include sexual orientation and gender identity. As a result, legal exclusions that operate on the basis of orientation or gender identity invite heightened constitutional scrutiny. These protections are reinforced by Article 21, which, following Justice K.S. Puttaswamy v. Union of India (2017),[3] recognises privacy, dignity, and decisional autonomy as central to individual liberty. While intimate relationships are shielded from criminal sanction, the absence of corresponding recognition in family law undermines these guarantees by denying legal stability to chosen relationships.
The doctrine of constitutional morality, articulated in Navtej Johar as a counterweight to social morality, requires the State to align law and policy with the Constitution’s transformative commitments to equality, fraternity, and dignity. Viewed through this lens, the continued exclusion of LGBTQ+ unions from family law regimes reveals a persistent gap between constitutional recognition of identity and statutory acknowledgement of relationships in post-377 India.[4]
II. Marriage Rights Vacuum
Indian marriage law continues to rest on explicitly heterosexual foundations. Both the Special Marriage Act, 1954[5] and the Hindu Marriage Act, 1955[6] define marriage in gender-binary terms, conceptualising it as a union between a “man” and a “woman.” Section 4 of the Special Marriage Act requires parties to be an unmarried male and female, while the ritual framework of the Hindu Marriage Act similarly presupposes binary gender roles. As a result, same-sex and queer couples remain excluded from formal solemnisation and from the bundle of legal rights that flow from marital status, including joint property rights and spousal benefits.
This statutory position was reaffirmed by the Supreme Court in Supriyo @ Supriya Chakraborty v. Union of India (2023),[7] where a five-judge Bench unanimously held that marriage is not a fundamental right. While recognising that the choice of one’s partner falls within the protected sphere of personal liberty following Navtej Singh Johar, the Court distinguished such autonomy from the grant of state-recognised marital status, holding that the latter falls within the domain of legislative policy. The majority cautioned that judicial recognition of same-sex marriage would have wide-ranging implications across inheritance, adoption, and welfare laws, thereby warranting parliamentary intervention rather than judicial expansion.
This position was further entrenched through the dismissal of review petitions in January 2025. Although certain High Courts, including the Madras High Court, have acknowledged the existence of “chosen families” for limited protective purposes, such recognition has stopped short of conferring marital status. Comparative civil union frameworks in other jurisdictions demonstrate that alternative models of legal recognition are institutionally possible. India’s continued reluctance to adopt such mechanisms reflects a deliberate policy choice rather than constitutional incapacity, prioritising traditional assumptions about marriage and procreation over relational equality in a post-377 constitutional landscape.
III. Adoption and Parenting Barriers
The adoption framework under Indian law continues to exclude LGBTQ+ couples through indirect statutory design. The Juvenile Justice (Care and Protection of Children) Act, 2015,[8] read with the Central Adoption Resource Authority (CARA) Regulations, conditions joint adoption on the existence of a “stable marital relationship” of at least two years between a “married man and woman.” While Section 57 of the JJ Act permits single individuals, including queer persons, to adopt, joint adoption remains unavailable in the absence of legally recognised marriage under the Special Marriage Act or the Hindu Marriage Act.
The CARA Adoption Regulations, 2017 reinforce this exclusion through composite age criteria and marital stability requirements. Although framed in neutral terms, these conditions operate to structurally exclude same-sex couples. In Supriyo v. Union of India, a majority of the Court upheld the validity of Regulation 5(3) against Article 15 challenges, while noting the policy nature of adoption regulation. At the same time, separate opinions, particularly that of Chief Justice D.Y. Chandrachud, acknowledged the indirectly discriminatory impact of these eligibility norms.[9]
Barriers to parenthood are further entrenched by the Surrogacy (Regulation) Act, 2021[10] and the Assisted Reproductive Technology (Regulation) Act, 2021,[11] both of which restrict access to infertile heterosexual couples married for a prescribed duration, explicitly excluding singles, live-in partners, and LGBTQ+ persons. These exclusions are commonly justified on child welfare grounds, yet they rest on untested assumptions about queer parenting, especially when contrasted with the law’s willingness to permit single-parent adoption. In the absence of legislative reform, LGBTQ+ individuals seeking to build families are left to navigate fragmented and unequal pathways, reinforcing exclusion through regulatory design rather than express prohibition.[12]
IV. Maintenance and Economic Rights Gap
The absence of marital recognition has direct economic consequences for LGBTQ+ partners. Maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (formerly Section 125 of the Code of Criminal Procedure, 1973)[13] remains tied to the status of a “wife” or to narrowly defined familial dependency, effectively excluding same-sex partners from its protective scope. Although the Supreme Court issued notices in 2025 examining whether maintenance claims may extend to live-in relationships,[14] such relief continues to depend on the ambiguous standard of a “relationship in the nature of marriage,” a test that has not been meaningfully applied to same-sex couples following Supriyo v. Union of India.
The Protection of Women from Domestic Violence Act, 2005[15] potentially offers relief to transgender women in heterosexual relationships through its broad definition of an “aggrieved person,” yet same-sex partners continue to face uncertainty due to the law’s implicit reliance on traditional relational structures. Similar exclusions arise in inheritance regimes under the Hindu Succession Act, 1956 and the Indian Succession Act, 1925, where succession flows through marital or blood-based categories, leaving queer partners legally invisible. This invisibility extends to insurance benefits, employment entitlements, medical decision-making, and tenancy succession, where spousal presumptions determine access to rights. In the absence of statutory reform, judicial restraint has allowed economic vulnerability to persist, reducing constitutional recognition of dignity to a largely symbolic assurance.[16]
V. Comparative Perspective
Comparative experiences from other jurisdictions provide useful context for evaluating India’s constitutional choices, without suggesting automatic transplantation. Taiwan’s 2019 marriage equality framework integrated same-sex couples into its civil code, offering legal stability without linking family recognition to procreation. Similarly, South Africa’s Civil Union Act, 2006 emerged through legislative consensus, accommodating pluralism within a constitutional framework. These models stand in contrast to the Supreme Court’s deferential approach in Supriyo v. Union of India, where concerns about cascading effects across multiple family law statutes were cited to justify judicial restraint. Unlike the United States, where Obergefell v. Hodges (2015)[17] reflected a more interventionist judicial role, India has consciously prioritised parliamentary primacy. Nepal’s recent move towards recognising civil unions further demonstrates that legislative solutions are institutionally feasible within constitutional systems comparable to India’s. Taken together, these examples suggest that India’s continued inaction reflects policy choice rather than constitutional inevitability.
VI. Social Justice and Equality Analysis
Legal invisibility continues to sustain structural inequality for LGBTQ+ persons in India. Although dignity under Article 21 has been formally acknowledged, statutory frameworks continue to reproduce exclusion, widening the gap between constitutional promise and lived reality. In a post-377 landscape, queer individuals are no longer criminalised, yet they routinely face denial of welfare benefits, eviction from jointly occupied homes, and exclusion from spousal entitlements, perpetuating dependence on heterosexual legal norms. This contradiction entrenches inequality, allowing arbitrariness under Article 14 to persist through legislative silence, often justified in the name of child welfare without empirical support.[18] While some High Courts have cautiously recognised “chosen families” for limited protection, such judicial gestures only underscore how unresolved doctrinal gaps continue to relegate LGBTQ+ persons to a form of second-class citizenship, despite constitutional recognition of identity.
VII. Conclusion
Doctrinal gaps continue to persist in Indian family law. While constitutional morality demands substantive equality, statutory frameworks remain firmly heteronormative, and the Supreme Court’s restraint in Supriyo v. Union of India has left questions of marriage, adoption, and maintenance unresolved. The failure to amend the Juvenile Justice Act and the continued exclusion under surrogacy and assisted reproduction laws reflect a broader policy inertia rather than constitutional necessity. Unless legislative reform follows (whether through amendments to the Special Marriage Act or the introduction of a neutral civil union framework consistent with Article 15), the promise of Navtej Singh Johar risks remaining largely symbolic. Prolonged silence, in this context, does not preserve neutrality; it entrenches vulnerability.
References
[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[2] NALSA v. Union of India, (2014) 5 SCC 438.
[3] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[4] Law Curb, Use of Constitutional Morality in Recent Supreme Court Judgments, available at https://www.lawcurb.in/post/use-of-constitutional-morality-in-recent-supreme-court-judgments (last accessed 10 January 2026).
[5] The Special Marriage Act, 1954.
[6] The Hindu Marriage Act, 1955.
[7] Supriyo @ Supriya Chakraborty v. Union of India, (2023) SCC OnLine SC 1348; review petitions dismissed January 2025. See also APS Law, Case Analysis: Supriyo @ Supriya Chakraborty v. Union of India (2023), available at https://apslaw.co.in/case-analysis-supriyo-supriya-chakraborty-anr-v-union-of-india-2023-same-sex-marriages-in-india/ (last accessed 11 January 2026).
[8] The Juvenile Justice (Care and Protection of Children) Act, 2015.
[9] NDTV, Law Cannot Assume Only Heterosexual Couples Can Be Good Parents: Chief Justice of India, available at https://www.ndtv.com/india-news/law-cant-assume-only-heterosexual-couples-can-be-good-parents-chief-justice-4488048 (last accessed 8 January 2026); Law Bhoomi, Adoption Rights of Same-Sex Couples in India, available at https://lawbhoomi.com/adoption-rights-of-same-sex-couples/ (last accessed 10 January 2026).
[10] The Surrogacy (Regulation) Act, 2021.
[11] The Assisted Reproductive Technology (Regulation) Act, 2021.
[12] Indian Journal of International Law and Research (IJIRL), Redefining Family and Reproductive Autonomy: LGBTQ+ Exclusion in Indian Surrogacy and Taxation Law, available at https://ijirl.com/wp-content/uploads/2025/09/REDEFINING-FAMILY-AND-REPRODUCTIVE-AUTONOMY-LGBTQ-EXCLUSION-IN-INDIAN-SURROGACY-AND-TAXATION-LAW.pdf (last accessed 9 January 2026).
[13] Bharatiya Nagarik Suraksha Sanhita, 2023, s. 144 (formerly The Code of Criminal Procedure, 1973, s. 125).
[14] LiveLaw, Can a Live-in Partner Seek Maintenance under Section 125 CrPC? Supreme Court Issues Notice, available at https://www.livelaw.in/top-stories/can-live-in-partner-seek-maintenance-under-section-125-crpc-supreme-court-issues-notice-on-mans-appeal-302420 (last accessed 10 January 2026).
[15] The Protection of Women from Domestic Violence Act, 2005. See Centre for Law and Policy Research (CLPR), Reimagining Protection: Making the PWDVA Work for Trans Women Facing Intimate Partner Violence, available at https://clpr.org.in/blog/reimagining-protection-making-the-pwdva-work-for-trans-women-facing-intimate-partner-violence/ (last accessed 10 January 2026).
[16] Vidhi Centre for Legal Policy, Gender Fluidity and Inheritance Law in India, available at https://vidhilegalpolicy.in/blog/gender-fluidity-and-inheritance/ (last accessed 10 January 2026); International Journal for Multidisciplinary Research (IJFMR), Legal Exclusion of LGBTQ+ Families in India, (2025) Vol. 3, available at https://www.ijfmr.com/papers/2025/3/47544.pdf (last accessed 9 January 2026).
[17] Obergefell v. Hodges, 576 U.S. 644 (2015).
[18] National Center for Biotechnology Information (NCBI), Legal Recognition of Same-Sex Families and Child Welfare, available at https://pmc.ncbi.nlm.nih.gov/articles/PMC9816354/ (last accessed 9 January 2026); International Journal for Multidisciplinary Research (IJFMR), Queer Family Rights and Legal Recognition in India, (2025) Vol. 2, available at https://www.ijfmr.com/papers/2025/2/40537.pdf (last accessed 10 January 2026).
