ABSTRACT
This paper examines a recent Madras High Court judgement which ruled that “chosen families” fall under the ambit of Article 21 of the Indian Constitution. It argues that the judgement is a significant development in queer rights jurisprudence in India because it broadened the legal notion of the term “family” beyond heteronormative and conservative ideals and incorporated the Puttaswamy (2017) and Navtej Singh (2018) judgments as precedents. However, the judgment also illustrates a paradox in Indian queer rights: gaining legal recognition in this domain relies solely on judicial action in the absence of any parallel political reform. In other words, there is usually no legislative change to accompany it. This paper asserts that more in-depth or substantial transformation would involve clearly defining legal rights for queer partnerships, especially with regards to personal laws on marriage, adoption, and inheritance. It also considers international comparisons and socio-legal approaches for more inclusive, codified international legal frameworks.
KEYWORDS
Article 21; Indian Constitution; Queer rights; jurisprudence, Personal laws; Chosen families; LGBTQ+
INTRODUCTION
As a marginalised cohort, the LGBTQ+ (Lesbian, gay, bisexual, transgender and queer) community has been historically subjected to discrimination and exclusion in countries all over the world. India is no exception to this practice and members of the community frequently face social as well as legal challenges that are not experienced by non members. Although LGBTQ rights in the country have expanded in the 21st century, much of these advancements came from India’s judiciary and not the legislature.
Following the landmark judgment given in Navtej Singh Johar v Union of India (2018), in which the Supreme Court struck down Section 377 of the Indian Penal Code that criminalised “carnal intercourse against the order of nature, there are no legal restrictions on sex between men or between women. Sexual orientation is now legally recognised as an immutable aspect of identity that is constitutionally protected. As for the recognition and validation of transgender identities, the Supreme Court in National Legal Services Authority (NALSA) v. Union of India (2014), recognized transgender persons as the “third gender”, affirming their right to self-identify their gender without the need for surgery or medical examination.
Nevertheless, it is important to acknowledge that while these judgments are progressive and significant, they are still far from being substantial enough to foster a safer, more secure and equitable society for members of the LGBTQ+ community. They are only partial fixes to a much larger and deeper problem. Decriminalising homosexuality does not amount to complete equality if same-sex marriage, adoption rights, or even civil unions for that matter, are not considered valid under the eyes of the law. This is further evidenced by how the Supreme Court in Supriyo Chakraborty v. Union of India (2023) chose to assert that same sex marriage was not legal in India and instead recommended that the legislature create a statutory framework for civil unions for queer partnerships.
In a 2025 judgment however, the Madras High Court held that “chosen families” borne from queer partnerships were valid and legitimate. The court provided a dual affirmation which acknowledged the LGBTQ+ community’s right to live with dignity and autonomy and opposed the heteronormative underpinnings of Indian family law. The court also ordered for police protection for queer couples and recognised non-traditional kinship bonds, legally broadening the definition of “family”. The high court’s judgment is thus a remarkable moment in the queer acceptance struggle. It also urges on the necessity of paying attention to the structural limitations of existing legal frameworks in Indian personal laws such as the Hindu Marriage Act which continue to exclude queer and non-conventional families. This study explores the transformative potential of the Court’s reasoning and its broader implications for the legal recognition of queer relationships in India via a doctrinal and socio-legal analysis. It sees the Madras High Court’s recognition of queer ‘chosen families’ under Article 21 as a significant shift in Indian constitutional jurisprudence that signals a need reevaluating heteronormative family law frameworks and traditional and conservative boundaries of legal kinship.
RESEARCH METHODOLOGY
The paper is descriptive in nature and the research it incorporates relies on one primary source i.e. the 2025 Madras High Court judgment on chosen families and secondary sources such as, scholarly articles on queer rights in India, news coverage and editorials and NGO/legal think tank reports.
REVIEW OF LITERATURE
Background
The traditional or conventional definition of the nuclear family across several cultures all over the world typically excludes Lesbian, Gay, Bisexual, Pansexual, Transgender, Gender Queer, Queer, Intersex, Agender, Asexual, and other Queer-identifying community family members. It is not uncommon for individuals belonging to the LGBTQ+ to be marginalised, discriminated against or even disowned by their kin for not conforming to these rigid family dynamics. Consequently, several individuals who identify as LGBTQ+, seek “alternative” or “chosen” families that offer them acceptance, love, and security– things that were not provided to them by their biological families. In other words, these chosen families are simply groups of individuals who intentionally choose one another to play significant roles in each other’s lives. The most important element of chosen families are strong emotional bonds among its members, even if they are not biologically or legally related. In fact, due to shared circumstances, chosen families in the LGBTQ+ population are considered more emotionally and psychologically supportive than biological families. However, most statutory laws in India are firmly rooted in heteronormative definitions of families and do not consider chosen families. For instance, the Hindu Marriage Act, 1955, as well as other personal laws like the Special Marriage Act, 1954, presuppose marriage as a heterosexual union, effectively excluding same-sex and non-traditional families. This is despite the fact that the Special Marriage Act is technically gender-neutral. Even the courts have consistently held that its legislative intent does not extend to recognizing queer partnerships. In spite of landmark judicial affirmations of queer identities, as a whole, Indian family law continues to marginalize LGBTQ+ relationships through its refusal to adapt more flexible and inclusive definitions of marriage, adoption, inheritance, and guardianship to accommodate non-heteronormative families. However, a 2025 Madras High Court ruling may pave the way for positive change.
Case Analysis
The matter was brought to the Madras High Court via a Habeas Corpus petition alleging illegal detention of a 25-year-old lesbian woman who had been forcibly separated from her partner and subjected to harassment by her birth family. A Division Bench consisting of G. R. Swaminathan and V. Lakshminarayanan, JJ., opined that while same-sex couples cannot marry, they are still entitled to form families. They permitted the petition and set the detenue at liberty. The Court relied on Deepika Singh versus Central Administrative Tribunal & Ors. (2022) which held that the predominant conception of a ‘family’ both in law and society, i.e. a single, unchanging unit consisting of a mother and a father and their children, ignores any circumstances that could lead to changes in familial structure, and that many families do not conform to this expectation to begin with. Families come in many shapes and forms. They could consist of single-parent households or households formed through adoption, remarriage or fostering. Their being non-traditional or unconventional does not negate the fact that they are just as real and valid and equally deserving of security and protection under the law. The court noted that they could not be excluded from legal rights or social welfare benefits simply because they differ from the norm.
Interestingly, the court even called out the continuance of conservative ideals despite judgments like NALSA v. Union of India, (2014) and Navtej Singh Johar v. Union of India, (2018) and cited the Yogyakarta principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, 2006. These principles call for universal enjoyment of human rights such as the right to privacy, security and found family of choice regardless of sexual orientation or gender identity. The Court further noted that the Supreme Court upheld these principles in NALSA wherein the Supreme Court upheld the Yogyakarta principles. However, this does not mean that the Court was all for the legalisation of same-sex marriage. It still relied on Supriyo v. Union of India, (2023). Instead, taking note of Deepika Singh, the Court noted that despite the legal invalidity of marriage between same-sex couples, such couples can still form families, stating that:
“Marriage is not the sole mode to found a family. The concept of “chosen family” is now well settled and acknowledged in LGBTQIA+ jurisprudence. The petitioner and the detenue can very well constitute a family.” The Court reiterated that: “NALSA and Navtej Johar have declared that sexual orientation is a matter of individual choice and that it is one of the most basic aspects of self-determination, dignity and freedom. It is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution”.
Considering other decisions of the Supreme Court like Shakti Vahini v. Union of India, (2018) 7 SCC 192, Asha Ranjan v. State of Bihar, (2017) 4 SCC 397, and Shafin Jahan v. Asokan KM, (2018) 16 SCC 368, the Court observed that even if these judgments were rendered in the context of inter-caste and inter-religion marriages their ratio would equally apply to same-sex relationships as well. Moreover, the Court’s judgment made sure to incorporate inclusive terminology such as a critique of the word “queer”. In doing so, it created an image of a constitutional interpretation that embraces familial autonomy in a manner that transcends traditional ideas of who and what makes a family and normalises the idea of chosen families.
Constitutional Interpretation
The decision of the Madras High Court understood the right of LGBTQ+ partnerships to form chosen families as an extension of Article 21 which enshrines the fundamental right to life and personal liberty. Initially seen as a safeguard against unlawful detainment, Article 21 has, over time, seen a broadening in its interpretation. Individual rights such as those pertaining to privacy, dignity and even the right to livelihood are now considered to be included in this definition. Several recent landmark holdings reflect this evolution. For instance, in 2018, the Supreme Court in Navtej Singh Johar vs the Union of India, struck down the part of Section 377 of the Indian Penal Code that criminalised homosexuality. It was held that consensual same-sex relations are one of the various liberties or aspects of freedom protected under the fundamental right to life and personal liberty guaranteed by Article 21. This effectively solidified sexual orientation as a facet of personal freedom and autonomy. Additionally, in 2017, the Supreme Court in The Madras High Court’s 2025 ruling builds on these precedents. It acknowledged the autonomy of those in queer relationships in a way that went beyond mere freedom of sexual expression. It recognised the validity of families that were not formed by heteronormative ideals of blood or marital ties. It therefore indicates another groundbreaking shift in the constitutional interpretation of Article 21. This interpretive trajectory only serves to show how the Constitution is a dynamic and flexible document, capable of embracing the plural realities of queer lives in India.
Implications for Indian Personal Laws
The implications of the Madras High Court’s affirming of chosen families cannot be understated. It could signal a much needed change in Indian personal laws governing matters such as marriage, inheritance and adoption. Statutes such as the Hindu Marriage Act, Hindu Succession Act, Guardian and Wards Act, Indian Christian Marriage Act, Muslim Personal Law (Shariat) Application Act, Special Marriage Act etc are premised on traditional and heternormative ideals such as blood ties and heterosexual marriages which either automatically exclude queer partnerships or leave them in a limbo of sorts. Broadening the conventional definition of ‘family’ to include units based on emotional interdependency rather than solely blood ties would enable queer partnerships to obtain access to vital legal rights on matters such as maintenance, medical decision-making, pension benefits, joint adoption, inheritance on intestacy, and next-of-kin status. While the Supreme Court called for the respect for dignity and autonomy of LGBTQ+ individuals and partnerships as constitutional imperatives via Navtej Johar and the Puttaswamy judgment, marriage (as well as the formation of civil unions between queer individuals) is still not legally recognised and this further prohibits them from adopting children as adoption laws only cover heterosexual couples. How can we rectify this?
There are two potential pathways for reform. The first involves legislating a new model for civil unions. The second involves amending present statues to accommodate families that do not fall within the conventional framework. These include families that are not formed on the basis of biology or marriage. Additionally, a more inclusive framework for family law could incorporate language that is gender-neutral. These steps move further than merely decriminalising queer relationships. They would result in actual substantive change. Queer families could both be actively safeguarded and validated as equal in society.
Comparative Perspective
Now, more and more countries and their courts and legislatures have provided legal recognition to queer relationships and alternative families. This is important for India as it can inspire and guide the judiciary and the legislature as they set about creating equitable legal frameworks. One international example is the United States. In Obergefell v. Hodges (2015), the Supreme Court ruled that the right to marry is a fundamental right protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment and legalised same-sex marriage nationwide. It held that marriage protects “intimate association, childrearing, and a two-person union unlike any other,” and that same-sex couples are entitled to dignity and autonomy. Additionally, the United Kingdom’s Civil Partnership Act 2004 legally recognised same-sex couples and granted them rights and privileges akin to marriage before officially legalising same-sex marriage in 2013. In this way, the legitimacy of queer relationships was recognised without confining them into heteronormative marital or familial ideals. What is different between these countries and India is that the former shed light on the significance of state-led legal affirmation of queer partnerships and chosen families while the latter has tended to tread lightly around via expansive interpretations of Article 21 in the absence of legislative reform. While Navtej Johar and the Madras High Court’s ruling are signs of progress, there is still an absence of codified rights for LGBTQ+ individuals pertaining to matters such as inheritance, adoption and tax benefits. The issue with this is that it leaves queer families in a legally ambiguous and precarious position. Thus, the right move now is to learn from other countries and work towards institutionalising protections for queer partnerships.
Critical Reflections
The Madras High Court’s recognition of “chosen families” is a progressive step when it comes to LGBTQ+ rights in India and is certainly bolder than previous jurisprudence on the matter. However, one cannot ignore the concerns regarding judicial activism in the absence of actual legislative backing. When it comes to advancing LGBTQ+ rights, constitutional courts often play a decisive role. This tendency is most notably seen in the Navtej Johar case. Without any corresponding statutory amendments though, these judgments are rendered symbolic and practically unenforceable. This brings to light an important question: Can judicial interpretation substantively alter lived realities in the absence of legislative implementation? Courts can function as agents of social change during periods of legislative inaction. At the same time, over-reliance on the judiciary risks judicial overreach. While the Madras HC ruling broadens the meaning of Article 21 to encompass chosen families formed by queer partnerships, it can be argued that its open-ended language could be seen as vague and lead to misinterpretation, say, by authorities who are untrained in gender sensitivity. Moreover, in a society marked by rising conservatism, progressive judgments could be used to accuse the judiciary of being elitist or out of touch with “Indian values.” What is therefore needed is harmonious communication and functioning between the judiciary, legislature and civil society.
SUGGESTIONS
The need of the hour is for any future legal reform to actively prioritise statutory codification of LGBTQ+ relationships through either civil union laws or amendments to existing statutes such as those governing personal law areas such as marriage, adoption, inheritance etc. This would guarantee equal and easy access to matters such as inheritance rights, adoption rights as well as spousal benefits for queer partnerships and their chosen families. Lastly, it is vital that the notion of a “family” be redefined in future statutes in a manner that is more inclusive and open to familial structures that are diverse and non-traditional. This can be done by adopting gender-neutral language and consciously accounting for kinship structures that are not based on biology or marriage.
CONCLUSION
In essence, the Madras High Court’s recognition of “chosen families” under Article 21 of the Constitution is a step in the right direction in uplifting members of LGBTQ+ community in India. By broadening the interpretation of Article 21 so as to include the right to form chosen families as a part of the right to life and personal liberty and building on the landmark judgements given in the cases of Navtej Johar and K S Puttaswamy, the court set the stage for moving beyond heteronormative definitions of who and what makes a family. The holding has the potential for inspiring society to transcend rigid and conventional notions of love, relationships, marriage and families. In other words, it is a powerful constitutional affirmation of queer existence and re-envisions the meaning of “family” in modern India. However, this advancement is far from flawless. In the absence of corresponding legislative reform in personal laws, the practicality of the judgment is limited. To create substantive change the need of the hour is a dialogic relationship between the judiciary and the legislature where court judgments are followed by codified statutes that solidify the rights that were guaranteed and enumerated by these judgments. This would eliminate any ambiguity, move us closer to equality and offer security to queer relationships and their families.
Name: Isha Bhat
College: Jindal Global Law School