ABSTRACT
The discourse on LGBTQ+ rights in India has gradually moved from questions of social acceptance to the realm of legal recognition and constitutional guarantees. While decriminalization of same-sex relationships marked a transformative shift, the absence of an inclusive legal framework under marriage, maintenance, and adoption laws continues to marginalize queer identities. This paper, titled “Beyond Social Morality: Reimagining LGBTQ+ Rights in Marriage, Maintenance, and Adoption through Constitutional Morality,” argues that the pathway to equality lies not in the fluctuating standards of social morality but in the enduring values of constitutional morality.
Marriage, as a legal institution, remains restricted under personal laws and the Special Marriage Act, thereby denying LGBTQ+ individuals the right to form families with legal security. Maintenance, intrinsically linked to marriage, highlights further inequities; the current statutory provisions reinforce heteronormative assumptions, leaving queer couples without recourse in circumstances of dependency or breakdown of relationships. Adoption, too, remains a contested terrain, where the best interests of the child are often interpreted narrowly through the lens of traditional family structures. Together, these exclusions perpetuate systemic discrimination, relegating LGBTQ+ persons to a second-class status within the legal order.
Constitutional morality, as articulated by the Supreme Court in various landmark judgments, provides a framework to transcend these limitations. Rooted in the principles of dignity, equality, and non-discrimination, it compels a reinterpretation of existing laws in a manner consistent with constitutional values rather than societal prejudices. By aligning marriage, maintenance, and adoption rights with constitutional morality, the legal system can ensure substantive equality and affirm the right of LGBTQ+ individuals to live with dignity.
This paper contends that embracing constitutional morality in family law is essential to dismantle structural discrimination and affirm the LGBTQ+ community’s equal stake in society. Moving beyond social morality ensures that fundamental rights are not contingent on public opinion but are guaranteed as part of the constitutional promise of justice, dignity, and equality.
Introduction
The recognition of LGBTQ+ rights in India has undergone a transformative shift since the decriminalization of consensual same-sex relations in Navtej Singh Johar v. Union of India[1]. Though our constitution itself guarantees the equality, liberty, and dignity, but the family law continues to operate within a heteronormative framework that excludes queer individuals from fundamental rights in marriage, maintenance, and adoption. The denial of these rights is not merely a legislative gap but a reflection of social morality connected with the majoritarian perceptions slowly shaped the statutory law.
This exclusion hence creates a cascading effect as, queer partners are denied maintenance rights available to spouses under the Criminal Procedure and personal law statutes, leaving them in a financial agony in cases of separation or abandonment. Similarly, adoption laws, particularly under the Juvenile Justice Act, 2015, permit single LGBTQ+ individuals to adopt but prohibit same-sex couples from adopting jointly, thereby denying them the opportunity to form families on equal terms with heterosexual couples.
This research examines how the continued exclusion of LGBTQ+ persons from marriage, maintenance, and adoption undermines constitutional morality and argues for a reimagining of Indian family law that aligns statutory provisions with constitutional values of equality, dignity, and social justice.
Revamping the concept of marriage
The definition for “gender” is evolving beyond a simple male-female binary to include a spectrum of gender identities. This identity refers to a person’s internal sense of gender, which may not correspond with their biological sex. In the modern era, the right to one’s gender identity is considered as vital as the right to life itself, embodying principles of equality and fairness. Despite this, members of the LGBTQ+ community continue to face significant social injustice.
The traditional view of marriage, often seen as a sacred union exclusively for a male and a female, can be considered as a major barrier. However, increased awareness and scientific research have shown that homosexual individuals are no different from the so-called normal counterparts. It is not a disease or a disorder or not even a mental illness to treat and can be considered as normal and healthy variations of human sexuality. Unfortunately, disregarded due to existing social stigma.In India, despite the 2018 decriminalization of Section 377[2], many adults who identify as homosexual continue to face this social minority status.
The Special Marriage Act, 1954, designed as a secular avenue for inter-faith and inter-caste unions, continues to define marriage strictly as between a male and a female, thereby excluding same-sex couples from its ambit.
In Supriyo @ Supriya Chakraborty v. Union of India[3] (2023), multiple petitions sought recognition of same-sex marriage under SMA.The Supreme Court acknowledged the dignity and equality of queer persons but refused to extend marriage rights, reasoning that it is the legislature’s role to amend the law.
While considering the Indian Constitution, Article 14 ensures equality before the law and equal protection of the laws. The denial of marriage rights to LGBTQ+ couples under SMA creates an unreasonable classification between heterosexual and homosexual couples.In Navtej Singh Johar, the Supreme Court held that the guarantee of equality extends to all persons, irrespective of sexual orientation.
By withholding marriage rights, the State violates the principle of substantive equality, as LGBTQ+ couples are arbitrarily denied benefits available to heterosexual couples. Understanding Article 15, it prohibits discrimination on the grounds of sex.In Navtej Singh Johar, the Court interpreted “sex” to include sexual orientation.Denial of marriage rights amount to direct discrimination based on sexual orientation.
Thus, restricting marriage only to heterosexual couples under SMA is incompatible with, Article 15.
Under Article 19 of the Constitution, marriage is not merely a private contract but also an act of expression and association.
In Shakti Vahini v. Union of India[4] (2018), the Court held that the right to choose a life partner is integral to personal liberty and autonomy.Exclusion of same-sex couples from marriage curtails their freedom to express identity and form intimate associations, violating Article 19(1)(a) and 19(1)(c).
Article 21 guarantees the right to life and liberty, which has been expansively interpreted to include privacy, dignity, and autonomy.
In K.S. Puttaswamy v. Union of India[5] (2017), the Court affirmed the right to privacy, including intimate decision-making.In Shafin Jahan v. Asokan[6] (2018), the Court recognized the right to marry a person of one’s choice as part of personal liberty and revisiting theNavtej Singh Johar, the Court declared that dignity and autonomy of LGBTQ+ persons are constitutionally protected.
Therefore, exclusion of queer couples from marriage under SMA directly violates their right to life and liberty.
Revamping the concept of maintenance
Since Indian law does not recognize same-sex marriages, LGBTQ+ partners cannot claim maintenance as “spouses.”Queer partners in live-in relationships also face uncertainty, as most judicial precedents extending maintenance to live-in partners are rooted in heterosexual contexts.
The Hindu Adoption and Maintenance Act, 1956 permits adoption by adult males or females but is silent on queer couples. The Juvenile Justice (Care and Protection of Children) Act, 2015, allows single individuals to adopt regardless of marital status. Hence, all these can be permitted to couples only if they are legally married.
The CARA Guidelines[7], define eligibility for adoption; exclude same-sex couples since Indian law does not recognize their marriages.
The Hindu Marriage Act, 1955, Criminal Procedure Code, Section 125, and the Special Marriage Act, 1954 contain provisions for maintenance.
However, these provisions are framed in heteronormative terms, referring to “husband” and “wife,” thereby excluding same-sex partners.
As Article 14 ensures equality, the denial of maintenance rights to same-sex partners creates an unreasonable classification based on sexual orientation, violating equality.
Under Article 15 there are clear provisions for Non-discrimination, since “sex” includes sexual orientation[8](Navtej Johar), exclusion from maintenance amounts to discrimination.
Similarly,Article 21 clarifies the right to dignity and livelihood, maintenance is intrinsically linked to the right to live with dignity[9]. Denying this right to LGBTQ+ partners violates their dignity and security.
Revamping the concept of adoption
The Hindu Adoption and Maintenance Act, 1956permits adoption by adult males or females but is silent on queer couples. The JJ Act, 2015[10] allows single individuals to adopt regardless of marital status, permits couples to adopt only if they are legally married.
CARA Guidelines define eligibility for adoption; exclude same-sex couples since Indian law does not recognize their marriages.
Hence their position can be identified as single LGBTQ+ individuals they can adopt under JJ Act. But the Queer couples cannot adopt jointly, as “marriage” is a prerequisite. Also, the step-parent adoption is not available to queer couples due to lack of marriage recognition.
The Hindu Adoption and Maintenance Act, 1956 allows adoption only to heterosexual married couples and single persons.
The JJAct, 2015 provides for adoption but excludes recognition of same-sex couples as joint adoptive parents.
In Shabnam Hashmi v. Union of India[11] (2014), the Supreme Court recognized the right to adopt under the JJ Act, but this right remains inaccessible to same-sex couples.
The wide ambit of Article 14 clarifies that, preventing same-sex couples from adopting creates unjust exclusion.Similarly checking the Article 15 it is well said that the discrimination based on sexual orientation violates Article 15.Under Article 21 adoption is an extension of the right to family life. Excluding queer couples denies them the ability to form families, violating dignity and liberty.
The Supreme Court in Navtej Johar affirmed that LGBTQ+ persons are entitled to “full citizenship.” Denying adoption rights relegates them to second-class citizens.
Decoding the Article 39[12] of the Constitution, it directs the State to ensure children grow in a safe and nurturing environment.Excluding LGBTQ+ persons from adoption assumesthat queer families are unfit, ignoring global research that children raised in LGBTQ+ households thrive equally well.Hence, the denial undermines both constitutional values and the best interests of the child.
Conclusion
The denial of marriage, maintenance, and adoption rights to LGBTQ+ persons illustrates the dominance of social morality which denotes the heteronormativityover and above the constitutional morality, which requires equality, dignity, and non-discrimination.
Such exclusions stand in contrast to the doctrine of constitutional morality, which requires that laws and institutions reflect the values enshrined in the Constitution rather than the prejudices of social morality. Articles 14, 15, and 21 mandate equality, non-discrimination, and the right to live with dignityrights that cannot be selectively denied on the basis of sexual orientation. When viewed together, marriage, maintenance, and adoption form an interconnected trilogy of family law; denying queer persons access to one inevitably excludes them from the others, perpetuating systemic inequality.
Recognizing queer marriages under the Special Marriage Act would not only secure marital acceptance but also extend spousal maintenance and joint adoption rights, creating a coherent framework of family law aligned with constitutional values. Ultimately, constitutional morality obligates the State and judiciary to dismantle systemic barriers, ensuring that LGBTQ+ citizens enjoy the same familial, financial, and parental rights as all other Indians.
[1]AIR 2018 SC 4321
[2]Unnatural Offences
[3]W.P. ©. 1011/2022
[4]W.P. (Civil) No. 231 of 2010
[5]AIR 2017 SC 4161
[6] (2018) 16 SCC 368
[7]Require potential adoptive parents to be physically, mentally and financially capable with strict age limits for couples and single individuals.
[8][8]AIR 2018 SC 4321
[9]Chaturbhuj v. Sita Bai (2008) 2 SCC 316
[10]Juvenile Justice (Care and Protection of Children) Act, 2015
[11](2014) 4 SCC 1 AIR 2014
[12]Certain principles of policy to be followed by the state.
