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Same-Sex Marriage and Adoption: The Legal Evolution of Families
Same-Sex Marriage and Adoption: The Legal Evolution of Families
~Sura Anjana Srimayi
INTRODUCTION
The institution of the family has historically been regarded as the cornerstone of social stability. For centuries, law conceptualized the family as a heteronormative and biologically rooted unit formed through traditional marriage between a man and a woman. This understanding was treated not merely as a social fact but as a legal certainty. However, contemporary constitutional democracies are witnessing a profound transformation in the legal meaning of family. The social imagination — the collective capacity of a society to envision diverse ways of living, loving, and belonging — is increasingly outpacing the formal recognition granted by the State.
The struggle for same-sex marriage and adoption rights is therefore not confined to private liberty. It represents a deeper demand for equal citizenship. The debate has evolved from the “right to be left alone” to the “right to belong.” By 2026, the arena of contestation has shifted from courtrooms to legislative committees and administrative frameworks, reflecting a gradual yet complex reconfiguration of family law.
I. The Marriage Equality Debate in India
1. The Constitutional Turning Point
The marriage equality movement in India reached a constitutional crossroads with the landmark decision of the Supreme Court in Supriyo @ Supriya Chakraborty v. Union of India (2023). The Court unanimously acknowledged that queer identities are neither elitist nor urban constructs, and that sexual orientation is a natural and inherent characteristic protected under constitutional guarantees of dignity and equality.
However, the majority of the bench declined to recognize a fundamental right to marry for same-sex couples. The reasoning was institutional rather than moral: the Court held that the creation of a new legal institution, such as same-sex marriage, falls within the domain of Parliament. Judicial interpretation, in the majority’s view, could not extend to restructuring statutory frameworks that were explicitly gendered.
The decision thus produced a paradox. While affirming constitutional dignity, it withheld institutional recognition.
2. The Civil Union Debate and Administrative Incrementalism
Following the 2023 verdict, the Union Government constituted a committee led by the Cabinet Secretary to examine the rights and entitlements of queer couples within existing legal frameworks. By 2026, discussions increasingly revolved around the possibility of introducing “Civil Unions” or recognizing “non-marital intimate partnerships.”
Such a framework aims to confer limited but significant legal benefits. These include recognition as next of kin during medical emergencies, joint bank account access, succession-related entitlements, and other welfare-based recognitions. This incremental approach attempts to balance constitutional concerns with legislative caution.
Yet, this middle ground raises deeper constitutional questions. The Special Marriage Act, which governs civil marriages in India, is structured using gendered terminology such as “husband” and “wife.” Petitioners argued that these provisions could be read in a gender-neutral manner consistent with constitutional morality. However, the Court declined to reinterpret the statute in a manner that would effectively amend it.
As a result, same-sex couples remain in a legal grey zone — tolerated socially in certain spaces but not institutionally celebrated or fully recognized by the State.
II. Adoption and the “Best Interest of the Child”
1. Legal Framework Governing Adoption
Adoption law in India is primarily regulated by the Juvenile Justice (Care and Protection of Children) Act and the regulations framed by the Central Adoption Resource Authority (CARA). These laws emphasize that adoption must serve the “best interest of the child,” a principle deeply embedded in child welfare jurisprudence.
The legal controversy arises from the intersection of this principle with assumptions about family structure.
2. Single Versus Joint Adoption
Under existing law, a single individual — irrespective of sexual orientation — is eligible to adopt. This means that a queer individual can lawfully become a parent. However, joint adoption is permitted only to married couples who have completed at least two years of stable marriage.
Since same-sex marriages are not legally recognized, queer couples are barred from joint adoption. This creates a legal fiction: one partner may become the legal parent, while the other remains a legal stranger to the child. In cases of death, separation, or medical emergencies, the non-recognized partner lacks custodial or guardianship rights. The child’s security is therefore structurally compromised.
3. Judicial Division in the Supriyo Case
The adoption question deeply divided the bench in Supriyo. The minority opinion, authored by the then Chief Justice, emphasized the logical inconsistency of allowing single queer individuals to adopt while denying the same right to couples. If sexual orientation is constitutionally protected, family formation cannot be selectively restricted.
The majority, however, upheld the validity of CARA regulations, stressing that the State possesses a legitimate interest in preserving what it considers the traditional structure of family in determining the best interest of the child. This reasoning reflects an ongoing tension between empirical psychological research — which overwhelmingly supports the capacity of same-sex couples to raise children — and entrenched social assumptions.
III. The Recognition of Chosen Families
1. Social Imagination and Natal-Family Alienation
For many LGBTQ+ individuals, the family of birth is not a site of protection but of exclusion. The concept of “chosen family” describes the formation of enduring emotional and support networks beyond biological ties. This sociological reality is increasingly demanding legal reflection.
The law’s recognition of chosen families marks a significant shift from lineage-based identity toward relational autonomy.
2. High Court Interventions
In 2025 and early 2026, various High Courts, particularly the Madras High Court and the Kerala High Court, delivered progressive rulings in habeas corpus petitions involving queer couples. These courts affirmed that an adult has the fundamental right to reside with a partner of choice, irrespective of parental disapproval.
The judiciary has increasingly recognized that natal families may, in some instances, be sources of coercion or violence. By granting protection to live-in queer partners, the courts have indirectly acknowledged non-marital relationships as deserving of constitutional shelter.
This recognition does not amount to marriage equality, but it strengthens the principle of personal autonomy and bodily integrity.
IV. Global Trends and Comparative Jurisprudence
Comparative constitutional analysis provides valuable insight into the trajectory of family law reform.
In 2025, Thailand became the first Southeast Asian nation to legalize same-sex marriage with full adoption rights. This development challenges the often-invoked argument that LGBTQ+ equality is incompatible with “Asian values.”
Similarly, jurisdictions such as Australia and New Zealand recognize “de facto relationships.” Under this model, couples who cohabit for a specified duration automatically acquire rights analogous to marriage. This status-based recognition reduces dependency on formal ceremonies and focuses instead on relational reality.
Such comparative models may influence India’s ongoing legislative deliberations, particularly if Parliament seeks a calibrated and culturally contextual reform.
V. Reimagining the Legal Framework of Family
The transition from a traditional to a modern inclusive framework reflects structural shifts across multiple domains.
Historically, marriage was viewed as sacramental and inherently heteronormative. In contrast, contemporary constitutional discourse increasingly understands marriage as a contractual and potentially gender-neutral partnership.
Adoption law has evolved from a mother-father centric presumption to a child-centric evaluation based on the “best interest of the child.” Succession law is gradually moving beyond bloodline determinism toward recognition of nominated partners and intimate companions. Governance structures, once rigidly gendered in terms of “husband” and “wife,” are progressively being reframed in individual-centric language.
These transformations indicate that the law is slowly aligning with lived realities.
CONCLUSION
The debate surrounding same-sex marriage and adoption is not merely about access to a certificate. It represents a constitutional commitment to dignity, equality, and belonging. The Supreme Court’s 2023 decision deferred the question of marriage equality to Parliament, initiating a phase of cautious administrative incrementalism.
Yet, the present framework remains logically inconsistent. A system that permits a queer individual to adopt as a single parent but denies recognition to a committed couple undermines the stability it claims to protect. Partial recognition through civil unions, while beneficial, may not resolve the deeper structural inequality embedded within statutory language.
The evolution of family law reflects a broader civil rights struggle of our time — a journey from the criminalization of intimacy to the aspiration for the recognition of households built on choice, care, and commitment. Until the law ceases to treat non-traditional families as exceptions and instead embraces them as equal participants in the social order, the constitutional promise of dignity will remain incomplete.
The metamorphosis of the family is no longer a sociological abstraction; it is a constitutional inevitability.
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Disclaimer
Every effort has been made to ensure accuracy in this material. However, inadvertent errors or omissions may occur. Any discrepancies brought to the author’s notice will be rectified in subsequent editions. The author shall not be liable for any direct, indirect, incidental, or consequential damages arising from the use of this material. This article is based on various sources including statutory enactments, judicial decisions, academic research papers, professional journals, and publicly available legal materials.