For the longest time, human civilization has considered the union of a man and a woman as keeping in line with the natural world order and has made laws in accordance with that. This paper discusses extensively, the LGBTQIA+ community, including the challenges it has faced, and continues to tackle its history, recent developments in the sphere of law regarding it, and its imminent future. It also attempts to scrutinize the current position of the community in India and the rest of the world, focusing on certain legislations, the tussle between the legislature and the judiciary of India on this issue, and especially on how the children of the community are affected by all of this. This specific group of people that we discuss today, has most likely existed from the very beginning of time itself. The only difference is that then, they weren’t vocal about their existence, nor were they a group. As conditions of life change and the mentalities of society’s people shift for better or for worse, we must learn to accustom ourselves to that which is the definition of normalcy in many people’s lives.


LGBTQIA+ community, same-sex, Supreme Court, Centre, marriage, children, adoption, surrogacy, inheritance


Serving as an abbreviation for the words, ‘lesbian’, ‘gay/gender-neutral/gender-queer’, ‘bisexual/bigender’, ‘transgender/transvestite/transsexual’, ‘questioning/queer’, ‘intersex’ and ‘allies/androgynous/asexual’, which describe a person’s sexual orientation or gender identity, the term, LGBTQIA+ is used to refer to a community that has been gaining momentum in its work and existence over the past few years, representing the several other sexual orientations, and genders in between the typical narrow definitions of ‘man’ and ‘woman’, indicated by the plus sign. The community has accrued significance and garnered interest in recent times primarily due to its activity surrounding demands for the legal recognition of its rights and the grant of equal footing with heterosexuals. These individuals, as a social group, prefer to use the term, ‘pride’ to indicate their promotion of self–affirmation, dignity, equality, and increased visibility. The prevailing mindset that bolsters most of the movements organized by the community is pride, as opposed to shame and social censure, the practice of which originally spawned from the 1969 Stonewall Riots at Greenwich Village, Manhattan, USA. Some of these cities in India include Kolkata, Chandigarh, Delhi, Bengaluru, and Pune.

The issue of same-sex marriage and how it is perceived all around the world

The Netherlands was the first country to introduce an expansive act regarding marriage laws, including same-sex couples, in 2001. In 1971, Michael McConnell and Jack Baker were legally wed in Hennepin County, Minnesota, becoming the first same-sex couple to do so in contemporary times. And in 1987, the national news covered the story of two policewomen who were wed in central India according to Hindu rites and traditions. Reactions from the families ranged from acceptance to criticism to outright harassment.

Obergefell v. Hodges [1]is a landmark case of the Supreme Court of the United States which ruled that the fundamental right to marry is guaranteed to same-sex couples by the Constitution and is protected under it. The decision mandates that all 50 states execute and recognize same-sex marriages under the same qualifications as marriages between opposite-sex partners, including all rights and obligations that go along with them. The 117th United States Congress enacted the historic Respect for Marriage Act[2], which President Joe Biden then signed into law. It repeals the Defence of Marriage Act (DOMA)[3], mandates that same-sex and multiracial civil unions in the US be recognized as valid, safeguards religious liberty, and forces all US states and territories to comply.

In Asia, Taiwan is the only country to recognize same–sex marriage as legal through special ‘partnership registrations’, even though the rights afforded in these partnerships are very limited.

In India, though people of the community have been getting married ever since awareness about the community’s existence started spreading, neither their civil unions nor their marriages, are considered legal in the eyes of the Indian law. Live-in partnerships are the only sort of union that is, to some extent, sanctioned by law for same-sex couples. [4]In many parts of India, Maitri Karar or Nata Pratha is followed by such couples as a way to legitimize their relationship. Such agreements have details on property ownership, inheritance, and maintenance, in case of separation, and are entered into in the event that one of the spouses’ parents was pressuring them into marriage.[5]

The struggle for acceptance, respect, and concessions is very old. The Supreme Court of India created the foundation in 2014 by officially recognizing non-binary or transgender people as a “third gender”[6], recognizing sexual orientation as a crucial component of an individual’s privacy and dignity, strengthening the right to privacy in 2017 and decriminalizing homosexual sex, repealing legislation from the British colonial era, and strengthening LGBTQ people’s constitutional rights in 2018.

The Supreme Court established safeguards for “atypical” families in 2022. [7]It’s a broad group that encompasses same-sex couples as well as single parents, blended families, and kinship relationships.

But the issue of same-sex marriage has only recently reached the apex court of India after two gay couples moved the Supreme Court, requesting that the Special Marriage Act recognize their weddings[8], in November 2022. The National Commission for Protection of Child Rights (NCPCR) has filed an intervention application in the Supreme Court[9] in the matter of Amburi Roy v. Union of India[10], opposing adoption by gay couples[11], while the central BJP (Bharatiya Janata Party) – led government has resisted same–sex marriage, saying it is an ‘urban elitist concept’, against the traditional and cultural understanding of marriage, and is incompatible with the conventional concept of an ‘Indian family unit’. It has also protested against people from the community acting as blood donors, by including them in the “at risk” category for HIV, Hepatitis B, or C infections, claiming that such a move is based on scientific evidence. Currently, the matter is sub – judice in front of the Supreme Court of India, and all the petitions that have been transferred from different Indian courts, await judgment.

If this case were to be successfully and satisfyingly decided India would become the 35th country in the globe, and the second country in Asia to allow marriage equality and India would then supplant the US as the biggest democracy with such rights for LGBTQ couples.

Research Methodology

This paper relies on the doctrinal method of research for its completion and is primarily structured upon secondary sources of information like edited works, articles, and newspapers that interpret or review research works, histories, reviews of law and legislation, and political analyses and commentaries that contain information about the topics covered.

Review of Literature

According to the Hindu Marriage Act of 1955[12], Any Hindu marriage that is performed according to the traditions of one of the two partners’ communities is legal. As a result, many of the unions may be argued to be legally valid.[13] Furthermore, it can also be said that Section 5 of the Act [14]does not discriminate between heterosexual and homosexual couples. Section 5(4) of the Hindu Marriage Act [15]says that one of the conditions for a valid marriage is that ‘the parties are within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.’

The Tamil Nadu Registration of Marriages Act[16], 2009, received the assent of Governor Surjit Singh Barnala of Tamil Nadu in August 2009. Marriage is defined by the Act as, ‘all marriages performed by persons belonging to any caste or religion under any law for the time being in force, or as per any custom or usage in any form or manner and also includes remarriage’.

Two gay men, who wed in Washington, D.C. in 2017, Vaibhav Jain and Parag Vijay Mehta, argue that the Foreign Marriage Act of 1969[17] should be read in a way so as to consider same-sex partnerships and to the extent that it does not, it is unlawful, in Vaibhav Jain & Anr. v. Union of India[18]. Joydeep Sengupta, an Overseas Citizen of India (OCI), and his American partner Russell Blaine Stephens argued that the Citizenship Act, 1955[19] does not distinguish between different-sex and same-sex spouses and that the same-sex spouse of an OCI should be eligible to apply for an OCI card in Joydeep Sengupta v. Union of India & Ors. (2021)[20]. The Foreign Marriage Act[21]‘s exclusion of foreign same-sex marriages, according to the appeal, breaches Articles 14 and 21 of the Indian Constitution. [22]

The majority of the petitions regarding this issue have been filed under the Special Marriage Act of 1954[23]. Besides, the Chief Justice of India, Justice Dhananjaya Yeshwant Chandrachud has clarified that the court would limit the purpose of the hearing to develop a notion of ‘civil union’ for same–sex couples under the SMA. It thus becomes important to mention that the SMA has been held to be discriminatory by several advocates and judges alike. A 30-day public notice of the parties’ intention to marry must be submitted under Section 5 of the SMA[24]. Potential opposition to the marriage is invited by the public notice that is posted at the marriage officer’s office. This regime invites interference by vigilante organizations and others.

However, the SMA offers a structure that is sufficiently open to incorporate subsequent changes. This is because of the presence of a loophole in the Act’s terminology. Section 4[25] of the Act states that notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons may be solemnized under this Act if, at the time of the marriage, the following conditions are fulfilled, neither party must have a spouse who is still alive, and neither party must be incapable of giving a valid consent due to mental incapacity. The SMA might be agnostic to faith but it certainly isn’t agnostic to sexual orientation.

Status of the Children of same-sex marriages

The ambiguity surrounding the legality of same–sex couples’ marriages also consequently taints the legality of the existence and the rights of the children born to or adopted by such couples.


A permanent parent-child relationship between people who are not biologically related can be established by adoption. Many children in India who are orphaned, abandoned, or given up by their biological parents due to various circumstances like poverty, illness, or other problems have a crucial need for adoption. Such kids have a chance to find love, care, educational opportunities, and a forever home via adoption.

As it stands now, no law specifically prohibits or enables same–sex couples to adopt children. Regardless of whether they were the ones who gave birth to the child or adopted them as a single parent, under current Indian law, only one member of a same-sex partnership is recognized as a parent. The bigotry is against the adoption of children by people of the community as a couple. One of them, as an individual, is permitted to adopt by applying to the Central Adoption Resource Authority under the Juvenile Justice regime and can also enter into an adoption deed under the Hindu Adoptions and Maintenance Act, 1956 [26]for adoption as a single parent only. The problem with this is that then the child loses the benefit of parenthood.

The Supreme Court of India ruled in L.K. Pandey v. Union of India (1985)[27] that the child’s best interests come first in adoption proceedings. Subsequently, studies conducted in the US have found that in terms of social and emotional growth, academic achievement, and mental health, children raised by homosexual parents do not differ significantly from those raised by heterosexual parents.

Allowing homosexual adoption has been shown to benefit children and families in a number of ways, including by expanding the pool of prospective parents available to children in need of homes, giving same-sex couples who want to start families, stability and support, lowering stigma, and fostering acceptance and inclusion of the LGBTQ+ community. [28]


A woman who decides to carry a child to term or give birth on behalf of a different couple or individual who will subsequently assume parental responsibility for the kid is in a circumstance known as surrogacy.

Assisted Reproductive Technology operations like In – Vitro Fertilization and Intrauterine Insemination are made permissible for live-in couples, cis – heterosexual couples, and single women[29] under the Surrogacy (Regulation) Act, 2021[30], however, LGBTQ persons and single fathers are discriminated against. Furthermore, it is against a number of international agreements to keep the surrogacy industry tied to the idea of heterosexuality. The right to marry and have children is recognized in Article 16 of the Universal Declaration of Human Rights[31], and arbitrary state interference with a person’s family, home, or correspondence is forbidden under Article 17 of the International Covenant on Civil and Political Rights[32]. The right to parenthood is also recognized by Article 10 of the International Covenant on Economic, Social, and Cultural Rights. [33]

Legitimate or illegitimate?

Children of void marriages (whether deemed void or not) and children of annulled voidable marriages are lawful offspring. The children of void and annulled voidable marriages are thus granted the status of legitimacy by Section 16 of the HMA, 1955[34]. However, such children will only and exclusively inherit their parents’ possessions.

The children will be considered illegitimate if the marriage is declared unlawful or voidable in accordance with any other legal requirement than Sections 11 and 12 of the Act[35]. The restrictions of Section 16[36] would not be applicable, for instance, if a marriage was nullified due to failure to complete the required rituals.[37] According to Section 8 of the Hindu Succession Act of 1956[38], and Section 16(3) of the HMA[39], such children can inherit the separate property of their father, but they are not eligible to inherit the father’s coparcenary interest. A child from such a marriage is not entitled to inherit Hindu joint family property at birth. This fact raises an intriguing question, regarding what the child is supposed to do if they have two mothers or two fathers.

Illegitimate children are not eligible to inherit from their fathers. However, illegitimate offspring are considered to be linked by illegitimate kinship to their mother and one another[40] under the Hindu Succession Act[41]. Unlawful children have the potential to inherit their mother’s possessions as well as those of their illegitimate siblings (uterine blood).[42] The possessions of an illegitimate child’s mother are also transferable. The father has no claim to his illegitimate child’s possessions. Yet again, the partiality displayed here begs an answer to the dilemma of unequal rights given to gay parents.

The rights of children who do not fall under the aforementioned categories are governed by the Mitakshra School’s tenets, which declare that an illegitimate kid has no claim to their parents’ assets because they are not linked to them through legitimate kinship.

The Hindu Minority and Guardianship Act‘s section 6(b)[43] considers the “mother” and then the “father” to be the natural guardians of an illegitimate child. Both these provisions complicate matters even further for same–sex couples, mainly because they do not fall within any group per se.

The inheritance, guardianship, and maintenance rights of children are governed by a plethora of Acts and guidelines. One cannot say without apprehension and with concrete evidence that the marriages between same–sex couples are valid. Nor can they be termed as void, because they do not come under the scope of Sections 5, 7, and 11 of the HMA, 1955[44]. Moreover, how does a marriage that was never legal in the eyes of the law, become voidable under Section 12 of the HMA[45], in case of judicial separation or divorce? Thus, legally speaking, what is the position of the children of such marriages in society? If only one individual of a couple is recognized as the child’s legal parent because they gave birth to them or adopted them, it renders the other unable to have any legal say or recognition in the child’s life. Another mind–boggling example that could be taken, is that of a same–sex couple marrying when one of them already has a child from a previous relationship. The child then becomes the other individual’s stepchild, with no rights over their property unless and until they are adopted by them, or a specific provision is made in their will about them.


An Ipsos poll conducted in May 2021 showed that 44% of Indians were in favor of same–sex marriage, and granting of other rights to the LGBTQIA+ community. 14% supported civil unions but not marriage, 18% were against any legal recognition of same–sex marriages, and 24% were unsure.[46] In 2012, the Indian government estimated there were 2.5 million LGBTQIA+ people in the country; more recent estimations were made in 2021, which suggested that it might be 10% of the population of 1.4 billion, i.e., 135 million people. [47]

The author would like to point out that this number is likely to increase, as the younger generation becomes more accepting and open–minded, and replaces the older. India will not always be held back by the views of its majoritarian government. The state’s iron grip on this subject will wither, regardless of whether equal rights are given to the community or not. In light of that, the author would like to make a few suggestions.

  • Existing marriage limits can apply to same–sex unions. For males and Trans – males, it would be 21 years, and for females and Trans – females, it would be 18 years.
  • The Supreme Court had laid down the Shakti Vahini protocol[48] in the case of Shakti Vahini v. Union of India[49], which provides heterosexual couples protection from khap panchayats and honor killings by their own families. Either a similar provision needs to be made for homosexual couples, or they need to be included within the ambit of this protocol.
  • The SMA[50], along with many other acts and legislations governing things like parenthood, adoption, inheritance, alimony, and divorce, would need to have their wordage changed, essentially demanding their reconstruction. An example could be substituting words like ‘man/male’ and ‘woman/female’ with ‘person’, and ‘husband’ and ‘wife’ with ‘spouse’.
  • Homosexual couples could continue to adopt children informally and unofficially through fosterage and surrogacy. Meanwhile, the adoption industry in India needs to undergo training to become more accepting of gay couples looking to adopt children.


The leading mental health organization of the nation, the Indian Psychiatric Society, has released a statement emphasizing that restricting people of their civil rights may lead to mental health issues and that homosexuality is not a disease. Many of the Centre’s arguments do not hold water if we can prove that by decriminalizing homosexuality, we tacitly acknowledge that individuals of the same sex would form committed relationships in addition to endorsing relationships between persons of the same gender. When and if the Supreme Court gives its validating nod to same–sex marriages, society is bound to follow. An emblematic list of doorways, like intestate succession, tax deductions, and entitlement to a spouse’s physical remains, is unlocked by the granting of the legality of marriage to people of the community. The rights of the people of the community are real rights that they’re working hard to earn when they should’ve been granted and guaranteed to them under the Constitution itself. The constitutional protection of sexual orientation is inextricably linked to the freedom to choose a partner, the capacity for fulfilling intimacy, and the freedom from discriminating treatment.

Social attitudes towards this topic are changing rapidly, for the better. The approval and assent of the government will only help to solidify things, set them in stone, and let people accept them in their own time. For the numerous orphaned and abandoned children in India who require stable families, changing adoption and surrogacy laws would provide more loving homes. It would encourage greater social acceptance of homosexuality and help lessen the stigma and discrimination experienced by gay couples in India. It would effectually also shut the mouths of those who resist change. Asia is ready for development and adjustment. India is not the only Asian nation that might be advancing towards marriage equality. Japan, Thailand, and the Philippines are a few other countries where hope for this still exists.


Surjani Paul,

Chanakya National Law University.

[1] Obergefell v. Hodges, MANU/USSC/0055/2015.

[2] Respect for Marriage Act, 117-228, Acts of 117th Congress, 2022 (USA).

[3] Defense of Marriage Act, 104-199, Acts of 104th Congress, 1996 (USA).

[4]Sudipta Datta, ‘What is India’s stand on same-sex marriage?’ The Hindu, March 19, 2023, 04:12 a.m.,

[5]‘Centre Opposes Same-Sex Marriage’, DrishtiIAS, March 15, 2023,,and%20a%20sanskar%20in%20India.

[6] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[7]Deepika Singh v. Central Administrative Tribunal, 2022 SCC OnLine SC 1088.

[8] Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India).

[9]Amit Anand Choudhary, ‘Adoption by same–sex couples should not be allowed: NCPCR to SC’, The Times of India, 18th April, 2023, 08:43 IST,

[10] Amburi Roy and Anr. v. Union of India and Ors., MANU/SCOR/20481/2023.

[11]Esha Roy, ‘Child rights panel opposes plea seeking changes in adoption law for gay couples’, The Indian Express, April 14, 2023, 07:56 IST,

[12] Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India).

[13] Ruth Vanita, Same-Sex Love in India: Readings from Literature and History.

[14] Hindu, supra note 12, §5, at 4.

[15] Hindu, supra note 12, §5(4), at 4.

[16] Tamil Nadu Registration of Marriages Act, 2009, No. 21, Acts of Tamil Nadu Legislative Assembly, 2009 (India).

[17] Foreign Marriage Act, 1969, No. 33, Acts of Parliament, 1969 (India).

[18]Vaibhav Jain and Anr. vs. Union Of India And Ors., MANU/DEOR/120872/2022.

[19] Citizenship Act, 1955, No. 57, Acts of Parliament, 1955 (India).

[20] Joydeep Sengupta and Ors. v. Ministry of Home Affairs and Ors., W.P.(C)6150/2021.

[21] Foreign, supra note 17, at 4.

[22] INDIA CONST. arts. 14, 21.

[23] Special, supra note 8, at 3.

[24] Id. §5, at 5.

[25] Special, supra note 25, §4, at 5.

[26] Hindu Adoptions and Maintenance Act, 1956, No. 78, Acts of Parliament, 1956 (India).

[27]Laxmi Kant Pandey vs. Union of India (UOI) and Ors., MANU/SC/0080/1985.

[28]Arghya, ‘Can Homosexual Couples Adopt In India?’, Legal Service India,

[29]Krishnadas Rajagopal, ‘Same-sex couples, live-in partners not included in surrogacy and assisted reproduction laws, says govt. in Supreme Court’, The Hindu, May 9, 2023, 08:21 IST,

[30] Surrogacy (Regulation) Act, 2021, No. 47, Acts of Parliament, 2021 (India).

[31] Universal Declaration of Human Rights, § 16, 1948 (UNO).

[32]International Covenant on Civil and Political Rights, § 17, 1966 (UNO).

[33]International Covenant on Economic, Social and Cultural Rights, § 10, 1966 (UNO).

[34] Hindu, supra note 12, §16, at 4.

[35] Hindu, supra note 12, §s 11, 12, at 4.

[36] Hindu, supra note 12, §16, at 4.

[37] Shubhi, ‘Nullification of Marriage – An Annulled Marriage’, Legal Service India,—An-Annulled-Marriage.html.

[38] Hindu Succession Act, 1956, No. 30, Acts of Parliament, 1956 (India).

[39] Hindu, supra note 12, §16(3), at 4.

[40] Nimisha Srivastava, ‘What Are The Rights of Illegitimate Children Under Hindu Law’, iPleaders, April 8, 2016,

[41] Hindu, supra note 38, at 7.

[42]Rights of an Illegitimate Child under Hindu and Muslim Personal Law, Jus Corpus Law Journal, August 21, 2021,

[43]Hindu Minority and Guardianship Act, 1956, §6(b), No. 32, Acts of Parliament, 1956 (India).

[44] Hindu, supra note 12, §s 5, 7, 11, at 4.

[45] Hindu, supra note 12, §12, at 4.

[46]Madhurima Bhatia, ‘Significant Support for Rights of LGBTQ+ among Urban Indians: Ipsos LGBTQ+ Pride 2021 Global Survey’, Ipsos, June 29, 2021,

[47]Rachel Treisman, ‘Will India legalize same-sex marriage? Its top court hears arguments this week’, npr, April 18, 2023, 10:14 A.M. ET,

[48]Shakti Vahini v. Union of India (2018) – A Case on Honor Killing, The Lawmatics, December 11, 2022,

[49]Shakti Vahini vs. Union of India (UOI) and Ors., MANU/SC/0291/2018.

[50] Special, supra note 8, at 3.