INTRODUCTION
The recognition of LGBTQ+ rights in India has undergone significant changes with the Supreme Court’s landmark judgement in the case Navtej Singh Johar v. Union of India[29]. By striking down the criminalisation of Section 377 of the Indian Penal Code[17], the Court affirmed the principles of dignity, autonomy, and transformative constitutionalism. Despite all this, legislature has not yet conferred the equality status for LGBTQ+ community in the aspects of marriage, adoption, succession and guardianship.
The absence of legislative measures has created major complications in implementing the Court’s decision. When consensual same sex relations were decriminalised, demands for equal status in personal law matters like marriage and adoption increased. But, without proper legal reforms, ambiguities and gaps remain in aspects like inheritance, divorce, guardianship, parentage, taxation law and criminal laws. Scholars like Bhatia[38, 39], Narrain[47-49], Agarwal[40, 44], Ahuja[43], Sharma[45], Menon[46], Padmanabhan[51] and Sheikh[50] have highlighted the tension between these demands for equality and the complexities of existing religion-based personal laws.
This gap raises the critical question of how the legislature will balance social morality with constitutional morality while safeguarding both minority and majority rights. The Right to equality under Article 14[2] and right to life under Article 21[5] is given by Constitution to all persons; therefore, these rights should be achieved meaningfully without showing discrimination. In this context, equality is understood as equitability, which means treating all individuals fairly by addressing their diverse identities and needs rather than enforcing mere uniformity.
Judicial, legislative, or executive decisions must remain unbiased and aligned with fundamental rights[6, 1]. Also, ensuring that measures do not undermine the interests of any citizen in favour of a single community. Consequently, this study critically examines the implications of extending full equality in marriage and adoption to LGBTQ+ citizens. Through doctrinal analysis and comparative analysis of models in Canada[34], South Africa[35], Spain[36], and the Netherlands[37], the article argues that structured, unbiased legislative measures are essential to uphold constitutional provisions for all citizens, irrespective of sexual orientation.
BACKGROUND/LITERATURE REVIEW
The struggle for LGBTQ+ rights in India must be placed within its historical and doctrinal context. Section 377 of Indian Penal Code introduced during the colonial period in 1861, criminalised “carnal intercourse against the order of nature,” reflecting Victorian-era morality[17, 46].
The legal battle against this provision saw major shifts, beginning with the Naz Foundation v. NCT of Delhi[30] judgement, its subsequent reversal in Suresh Kumar Kousal v. Naz Foundation[33], and finally, the landmark ruling in Navtej Singh Johar v. Union of India[29]. While the Supreme Court struck down Section 377 to uphold constitutional morality and dignity, it explicitly maintained that the law would still apply to non-consensual acts and bestiality.
Existing scholarship emphasizes that the LGBTQ+ community is not a homogeneous group; lesbians, gay men, bisexuals, and transgender persons face distinct socio-legal challenges[41, 42]. While the judiciary has laid the groundwork for privacy and autonomy, scholars note a persistent gap between judicial decriminalization and full legal recognition such as marriage equality[2, 50] and adoption rights[52]. While countries like Canada and South Africa have codified these rights, Indian scholarship suggests that legislative hesitation in India has kept these constitutional rights largely theoretical.
MATERIALS AND METHODS
This study uses the doctrinal legal research, analysing statutory provisions of Indian Penal Code[17], Bharatiya Nyaya Sanhita[7], personal law statutes and other major laws, constitutional articles and landmark judgements which includes Naz Foundation v. Government of NCT Delhi[30], Suresh Kumar Koushal v. Naz Foundation[33] and Navtej Singh Johar v. Union of India[29].
Also, Comparative analysis was conducted using legislative models Canada[34], South Africa[35], Spain[36] and the Netherlands[37].
Secondary sources include scholarly commentary[38, 39, 43, 47, 48, 50] and policy guidelines such as Central Adoption Resource Authority (CARA) Guidelines, 2017[52]. the methodology includes Constitutional analysis, doctrinal interpretation and comparative analysis to identify gaps in Indian laws and suggest for structured legislative reforms with recommendations.
RESULTS
Legislative Vacuum in the Bharatiya Nyaya Sanhita (BNS), 2023:
The analysis reveals that the newly enacted BNS[7] fails to address the "protection gaps" created by the repeal of Section 377 of IPC[17]. Specifically, the BNS remains silent on non-consensual same-sex sexual assault and bestiality, leaving these acts without a clear statutory framework for prosecution.
Persistence of Heteronormativity in Personal Laws:
A review of current statutory provisions confirms that marriage and family laws remain exclusively heterosexual. The Hindu Marriage Act[12], Special Marriage Act[23], and Muslim Personal Law[20] do not provide a mechanism for same-sex unions. Consequently, LGBTQ+ individuals remain excluded from the legal benefits of marriage, such as joint adoption, succession, and guardianship.
Effectiveness of Global Legislative Models The comparative study identifies two distinct successful paths to equality:
Dedicated Statutes: Used by countries like Canada[34] and South Africa[35] to provide comprehensive rights.
Civil Code Amendments: Utilized by Spain[36] and the Netherlands[37] to integrate gender-neutral language into existing laws. The data suggests that these structured legislative measures, rather than judicial decrees alone, are necessary to resolve conflicts between fundamental rights and personal laws.
DISCUSSION
Landmark Case: Navtej Singh Johar v. Union of India
Judicial Reasoning and Transformative Constitu- tionalism:
The Supreme Court’s Judgement in the case Navtej Singh Johar v, Union of India[29] was anchored in the theory of Transformative Constitutionalism[56, 57], which emphasized dignity, privacy and autonomy. This landmark decision marked a departure from the "presumption of constitutionality" and legislative supremacy seen in Suresh Kumar Koushal v. Naz Foundation[33]. By viewing the Constitution as a living document intended to rectify historical social injustices, the Court affirmed that equality under Articles 14, 15, 19, and 21[2-5] must explicitly extend to sexual orientation.
The "Protection Gap" in the Bharatiya Nyaya Sanhita (BNS), 2023:
The striking down of Section 377 of the Indian Penal Code[17] was a landmark judgement by the Supreme Court. However, with the emergence of the Bharatiya Nyaya Sanhita (BNS)[7] presents a doctrinal paradox. It is an overstatement to suggest the BNS provides "no" protection; however, it lacks the specificity required for same-sex contexts. Currently, non-consensual sexual acts against adult men and bestiality are not covered under specialized sexual offense provisions. While general provisions regarding "criminal force" or "hurt" may apply, they fail to capture the sexual nature of the trauma. This creates a "hierarchy of protection" where same-sex victims are relegated to general criminal categories, undermining the constitutional mandate of equal protection[2, 58].
Constitutional Morality and Legislative Duty:
In the same case, The Court urged the legislature: “Your laws must reflect the Constitution’s promise of dignity and equality for everyone, not outdated Victorian morality”[29]. This statement implies, that the Court urged Parliament to ensure laws reflect the Constitution’s promise of equitability treating diverse identities with fairness rather than enforcing a "formal uniformity" based on Victorian morality. The LGBTQ+ community’s demands for marriage and adoption[12, 11, 20] pose significant challenges because Indian statutes are traditionally structured around binary heteronormative roles. Amending these requires more than mere terminology changes; it requires a systemic shift in legal practice.
Legal Complications in Personal Law and Custom
Marriage Laws:
The Hindu Marriage Act[12], Special Marriage Act,[23], Muslim Personal Law (Shariat) Application Act[20], Indian Christian Marriage Act[16], and Parsi Marriage & Divorce Act[21] deal only with heterosexual couples, not homosexual couples.
Customs and Usages:
Even after legalizing homosexual marriage, complications arise because marriage in India is largely based on custom and usages. Since there is no custom or usage of homosexual marriage in Hinduism, Islam, or Christianity, further rights such as adoption and inheritance face hurdles. Article 13(3)(a) of the Constitution[1] defines “law” to include “customs or usage having the force of law.” These customs are protected in the Constitution under the right to religion (Article 25)[6]. Thus, extending marriage rights to same-sex couples may be seen as violating religious freedom.
For example, suppose a Hindu same-sex couple attempts a marriage ceremony. Under Article 13(3)(a) of the Constitution[1], customs and usages have the force of law. Since Hindu customs do not recognize same-sex marriage, their union could be invalidated, raising a conflict between Article 25[6] (freedom of religion) and Article 14[2] (equality before law) of the Constitution.
Bigamy and Polygamy:
Under Section 60 of the BNS[7], bigamy is traditionally defined through a binary lens. If a man enters a same-sex union (not legally recognized) and subsequently a heterosexual marriage, it is doctrinally uncertain if bigamy has occurred, as the first marriage may be viewed as void ab initio.
Under Shariat law, polygamy is permitted only for Muslim men marrying women[20]. If a Muslim man marries both opposite-sex and same-sex partners, ambiguity arises about the legality of such unions.
Maintenance:
Upon divorce, Section 144 of the Bharatiya Nagarik Suraksha Sanhita[8] uses the term "wife." Without a gender-neutral interpretation, the judiciary faces a "semantic barrier" when deciding if a male or non-binary spouse is eligible for maintenance.
Child Custody:
Child custody becomes a major and complex issue under Hindu law. The Hindu Minority and Guardianship Act[13] designate the "father" as the natural guardian. In a same-sex household, the absence of a "mother/father" binary makes the "best interests of the child" standard[63] difficult to apply consistently, as the law provides no hierarchy for two parents of the same gender.
Similar complications arise under Muslim law, where the mother has custody (hizanat) of minor children, while the father remains the legal guardian. Custody of the child shifts to the father once the child reaches a particular age that is seven for boys, puberty for girls[20].
Statutory and Taxation Gaps
Income Tax Act:
Section 56(2)(x) of the Income Tax Act, 1961[15] exempts gifts between “spouses” which is assumed as heterosexual couples. Homosexual couples are excluded, creating complications and ambiguities in implementation[70].
Bharatiya Nyaya Sanhita (BNS):
Section 85 of the Bharatiya Nyaya Sanhita,[7] criminalizes cruelty by a husband or his relatives towards a woman, which replaced Section 498A of the Indian Penal Code,[17]. Its applicability to homosexual couples is uncertain, as seen in the case, Simmi Patwa v. GNCT Delhi & Anr.[31], where a woman in a same-sex union sought to quash an FIR filed by her former female partner.
Domestic Violence and Dowry Laws:
Similar complications arise in the Protection of Women from Domestic Violence Act, 2005[22] and the Dowry Prohibition Act, 1961[9], both framed around male-female marital relations and arrangements. This uncertainty leaves victims vulnerable; it also creates complications for the courts when deciding these complex matters.
Adoption and Guardianship:
Adoption laws such as the Hindu Adoptions and Maintenance Act, 1956[11] assume that the parents would be heterosexual couples. The Juvenile Justice (Care and Protection of Children) Act, 2016[19] allows single-parent adoption but does not explicitly recognize same-sex couples as parents of the adopted child. The Guardians and Wards Act, 1890[10] also relies on the assumptions that were based on heterosexual norms, leaving LGBTQ+ families without clear recognition.
Succession Laws:
Succession laws such as the Hindu Succession Act, 1956[14] and the Indian Succession Act, 1925[18] use sex-based classifications in succession like “widow,” “son,” “daughter,” and “husband,” leaving LGBTQ+ partners unrecognized as heirs as it creates complications in intestate succession that whether homosexual spouses and their children should be considered or not.
Assisted Reproductive Technology (ART) Act:
The Assisted Reproductive Technology (Regulation) Act, 2021[25] restricts surrogacy and ART access only to married heterosexual couples, which excludes same sex couples. Similarly, the Surrogacy (Regulation) Act, 2021[24] does not extend surrogacy rights to same-sex couples.
Sexual Offences and Protection Gaps
BNS Provisions:
Sections 63–70 of the Bharatiya Nyaya Sanhita, 2023[7] cover rape and allied offences, Section 75 covers sexual harassment, Section 76 covers voyeurism, Section 77 covers stalking, Section 80 covers Dowry Death, Section 81 covers cohabitation caused by a man inducing belief of lawful marriage, Section 82 covers marrying again during the lifetime of husband or wife, Section 83 covers marriage ceremony fraudulently gone through without lawful marriage, Section 84 covers enticing or taking away or detaining with criminal intent a married woman, Section 85 covers cruelty by husband or relatives, Section 87 covers kidnapping/abduction for marriage, and Section 140 covers kidnapping/abduction for illicit intercourse[7]. These offences are framed as crimes by men against women, but women can also commit such offences against women, and men against men. The absence of specific provisions for same-sex sexual crimes leaves gaps in protection.
Hostel Vulnerabilities:
Hostel systems in India usually separate men and women. Without laws addressing non-consensual same-sex acts, both men and women remain vulnerable to harassment from their hostel mates. In a men’s hostel, if a male student is coerced into sexual activity by another male student. Current laws lack explicit provisions for male-on-male sexual assault, exposing gaps in protection[7]. Similar may happen with female students also, again there is an absence of laws for female-on-female sexual offences.
Child-Related Concerns
Legitimacy and Inheritance:
In the Indian context, inheritance is deeply tied to religious personal laws. As no major religion in India traditionally recognizes same-sex unions, the Hindu Succession Act, 1956[14], Indian Succession Act, 1925[18], and Shariat laws[20] do not provide a mechanism for children of same-sex couples to inherit property as "legitimate" heirs of both parents.
Analytical Note: For example, a child raised by two mothers may legally inherit from the biological or legally adoptive mother, but remains a "legal stranger" to the second parent. This creates a conflict between the Constitutional Right to Equality (Article 14)[2] and the entrenched religious structures that govern Indian social life.
Social and Psychological Impact:
The mental state of children raised by same-sex couples may be affected by the fact that no major religion in India traditionally recognizes such unions. A child who follows a specific religion may experience confusion due to this lack of religious validation. Consequently, the child may face a sense of ambiguity regarding whether their family structure is "religiously or legally right" in the absence of clear governing laws.
While international bodies like the American Psychological Association (APA) clarify that there are no inherent psychological risks to children raised by same-sex parents[64-66], these findings are primarily based on Western social structures and may not be easily overgeneralized to the Indian context. Indian identity is often inseparable from religious and communal recognition. A child in a same-sex household may face a unique "identity dissonance" where their family structure lacks the religious validation that is central to Indian social life.
Institutional Barriers: The absence of inclusive terminology in Indian school forms and official documents (which mandate "Father" and "Mother") imposes a constant social friction. This may lead to psychological stress not because of the parents' orientation, but because of the clash between the child's domestic reality and the rigid heteronormative structure of Indian society.
CARA Guidelines:
The Central Adoption Resource Authority (CARA) Guidelines[52] currently restrict single men to adopting only male children, while barring same-sex couples from joint adoption. In case of married couples adopting child under CARA, it is presumed that the parents were father and mother[52]. CARA does not consider same sex couples as eligible adoptive parents. This forces many LGBTQ+ individuals to adopt as "single parents," creating a significant regulatory oversight gap unique to the Indian legal system:
This creates oversight gaps. The non-recognized partner may have de facto caregiving access without formal accountability mechanisms because only the other partner is recognised as parent. In extreme cases, this lack of legal recognition by law can restrict timely intervention or clear liability in instances of abuse or neglect[55]. The risk arises from legal non-recognition and monitoring gaps, not from sexual orientation.
The "Best Interests of the Child" Principle[63]: Upon divorce, guardianship disputes differ from heterosexual norms in homosexual contexts, which creates further complications. If a same-sex couple separates, then the legal adoptive parent may restrict the child’s contact with the non-recognized partner. The child may lose contact with someone whom they are very close to, or the other partner might still see the child without proper supervision, care or legal checks. This directly contradicts the judicially recognized principle of the best interests of the child[52, 63]. Courts lack clear standards or rules to adjudicate such disputes, as existing law[13, 19] does not contemplate same-sex parentage.
Recent Judicial Developments
The Supreme Court’s decision in Supriyo @ Supriya Chakraborty v. Union of India[32] declined to recognize same-sex marriage, leaving the matter to Parliament[67]. The Court, however, acknowledged that LGBTQ+ individuals enjoy constitutional rights to dignity and equality[27, 29]. Earlier, in National Legal Services Authority v. Union of India (NALSA)[28], the Court recognised transgender persons as a “third gender,” establishing a precedent for inclusive interpretation of fundamental rights. The Madras High Court in Arun Kumar v. Inspector General of Registration[26] and subsequent decisions[68] have taken progressive steps towards recognising same-sex cohabitation and family rights. These judicial pronouncements underscore the urgency of legislative action[53, 54, 69].
RECOMMENDATIONS
The legislature holds a primary responsibility to bridge the gaps created by judicial silences and statutory omissions. Following the decriminalization of consensual acts in Navtej Singh Johar v. Union of India[29], the following measures are recommended:
The Bharatiya Nyaya Sanhita (BNS)[7] must be amended to provide explicit protections against non-consensual same-sex sexual acts and bestiality. Under the Doctrine of Non-Retrogression[60], the state should not move backward by leaving victims of same-sex sexual assault with fewer specific protections than they had under the previous regime. Furthermore, the BNS[7] should adopt gender-neutral language for offenses such as stalking, voyeurism, and domestic cruelty. Recognizing that these crimes can occur regardless of gender is essential to upholding the constitutional mandate of equal protection[2, 60].
In addition to this, amendments are needed across other offences under the Bharatiya Nyaya Sanhita[7]. Now, the consensual same-sex relationships are no longer criminalized, so similar complications may arise as those existing in heterosexual relationships. Heterosexual relationships have given rise to various offences historically, which are addressed in the BNS with appropriate punishments. To ensure equal protection, it is essential to recognize that similar offences can now occur between individuals of any gender or sexual orientation. Accordingly, the BNS should be changed to remove gender limits, especially those laws that only treat offences as acts by men against women.
The Supreme Court has affirmed that the LGBTQ+ community is entitled to equal status[30]. Therefore, either a separate secular law[59] should be enacted to govern their personal law matters such as personal laws[12, 20, 23], adoption[11, 19, 52], succession[14, 18], and custody, or amendments should be made to existing religious personal laws, but only if the respective religion permits for such changes[7, 25]. Otherwise, it may lead to a violation of the fundamental right to freedom of religion. As there is the current lack of religious recognition for same-sex relationships in India, the most realistic approach is to enact a secular law that legalizes and regulates these relationships, thereby avoiding religious conflict. This statute should clearly define the rights of same-sex partners in divorce, maintenance, and intestate succession, ensuring that equality is achieved without destabilizing India’s pluralistic legal structure.
International examples offer useful guidance for making laws in India. Canada’s Civil Marriage Act, 2005[34] and South Africa’s Civil Union Act, 2006[35] are separate statutes enacted specifically to recognize same-sex unions. India can draw from these models while making its laws to the needs of Indian society. In contrast, countries like the Netherlands[37], and Spain[36] amended their unified civil codes to redefine marriage as between “two persons” rather than “a man and a woman.” However, India’s pluralistic legal system with religion-specific personal laws, makes such a unified approach more complicated.
Beyond personal laws, amendments are also needed in other statutes, that currently presume heterosexual couples. These include the Income Tax Act, 1961[15], CARA Guidelines, 2017[52], Juvenile Justice (Care and Protection of Children) Act, 2016[19], and the Assisted Reproductive Technology (Regulation) Act, 2021[25]. Terminology such as “husband” and “wife” should be replaced with “spouse,” and “father” and “mother” with “parents,” in all relevant applications and documents. A comprehensive statute must be enacted for the same sex couples and that should clearly specify which laws will apply to them equally and which may involve exceptions due to specific and different circumstances.
Strict Guidelines should also be introduced to address vulnerabilities in hostels and concerns related to children, which includes potential risk of social and psychological impacts. Also, equality must be ensured in all other aspects of civic life such as NCC[71], NSS and other NGOs regardless of sexual orientation.
In line with the principle of Transformative Constitutionalism, any new legislation must pass the Proportionality Test[61, 62] ensuring that the rights of the minority are protected without causing unintended societal imbalance. The ultimate purpose of the law is to safeguard the well-being of all citizens. Therefore, legislative reforms must be designed with precision to eliminate the contradictions and ambiguities that currently relegate LGBTQ+ rights to the realm of the theoretical.
CONCLUSION
The evolution of LGBTQ+ rights in India represents a significant shift from colonial-era criminalization toward a framework of Transformative Constitutionalism. While the landmark Judgement Navtej Singh Johar v. Union of India[29] established a judicial foundation of dignity, privacy and equality, the absence of corresponding legislative action has left these rights largely theoretical. Current statutes governing marriage, adoption, succession, and criminal law remain anchored in a heteronormative binary, resulting in the systemic exclusion of LGBTQ+ citizens from the full benefits of legal personhood.
Comparative models from Canada, South Africa, Spain and the Netherlands demonstrate that decisive legislative action can transform judicial recognition into lived equality. However, for India, it is not easy for the legislature to frame laws due to the potential risks and complexities discussed in this article. The Progress depends in enacting structured, unbiased and constitutionally aligned reforms that balance constitutional morality with social realities by avoiding ambiguities. Such measures should safeguard the interests of all citizens, by ensuring that equality is not viewed as privileging one community but as fulfilling the constitution’s promise of dignity and justice for everyone. Only then can the rights recognised by the courts be meaningfully exercised in everyday life.