Introduction
Indian constitutional law now protects consensual same-sex intimacy, sexual orientation and gender identity in ways that would have been difficult to imagine when Section 377 of the Indian Penal Code, 1860 operated as a criminal prohibition. The decisive shift came through a sequence of judgments that treated dignity, privacy, autonomy and equality as guarantees belonging to queer persons as full constitutional citizens. Yet the transition from decriminalisation to legal recognition of relationships remains unfinished. Marriage continues to function not only as a social institution but also as a legal gateway to a network of rights concerning succession, adoption, medical decision-making, maintenance, pensions, taxation and other incidents of family life.
The Supreme Court confronted this gap directly in Supriyo @ Supriya Chakraborty v. Union of India in 2023. The petitioners sought, among other reliefs, a gender-neutral interpretation of the Special Marriage Act, 1954 (SMA). The Court declined to rewrite the statutory scheme or create a new legal status for queer couples, emphasising institutional limits and the legislative consequences that would follow from altering a marriage code. The review petitions were dismissed on 9 January 2025. The result is a distinctive constitutional position: queer relationships are protected against criminalisation and entitled to dignity, but same-sex couples do not presently have access to marriage or a general statutory civil-union regime.1
This article adopts a doctrinal and comparative approach. It argues that Supriyo should not be understood as reversing the constitutional recognition achieved in earlier queer-rights cases. Rather, it exposes a structural problem: constitutional protection of personhood does not automatically supply the statutory incidents of family status. The central question after Supriyo is therefore not merely whether courts should have legalised same-sex marriage, but how Indian law should respond to the concrete legal disadvantages produced by the absence of recognised queer unions.
From criminalisation to constitutional personhood
Section 377 of the Indian Penal Code, 1860 was a colonial-era provision criminalising “carnal intercourse against the order of nature.” (The Bharatiya Nyaya Sanhita, 2023, which repealed and replaced the Code, contains no corresponding offence.) In Naz Foundation v. Government of NCT of Delhi, the Delhi High Court read the provision down insofar as it criminalised consensual sexual acts between adults in private, holding that such criminalisation violated Articles 14, 15 and 21.2 The Supreme Court reversed that decision in Suresh Kumar Koushal v. Naz Foundation in 2013, restoring the provision’s application to consensual same-sex conduct.3
The doctrinal foundations for a different approach nevertheless strengthened. In National Legal Services Authority v. Union of India (NALSA), the Supreme Court recognised the right of transgender persons to self-identified gender and linked gender identity to dignity and equality.4 In Justice K.S. Puttaswamy (Retd.) v. Union of India, the lead opinion in the nine-judge privacy decision expressly rejected the reasoning in Koushal that treated the small size of a minority as relevant to the protection of fundamental rights, and recognised sexual orientation as an essential attribute of privacy.5
Navtej Singh Johar v. Union of India then overruled Koushal and invalidated Section 377 to the extent that it criminalised consensual sexual conduct between adults. The judgments located sexual orientation within dignity, autonomy, privacy and equality, and rejected the proposition that majoritarian social morality can determine the content of fundamental rights. This line of authority transformed the legal position of queer persons, but it did not itself create a family-law status. Decriminalisation removed a penal disability; it did not automatically confer the positive legal incidents attached to marriage.6
Supriyo and the limits of judicial reconstruction
Supriyo presented the Supreme Court with a qualitatively different institutional problem. The petitions did not merely seek freedom from criminal punishment; they sought entry into a dense statutory regime. The SMA uses gendered terminology and is interlinked with rules concerning prohibited relationships, succession, divorce and other legal consequences. The Court unanimously declined to recognise a fundamental right to marry in the form asserted by the petitioners and declined to read the SMA in a manner that would effectively reconstruct the statutory scheme.7
The opinions nevertheless contain important points of constitutional continuity. Queer persons have the right to choose partners, form intimate associations and live without violence or coercion. The Court also recognised that transgender persons in heterosexual relationships may marry under the existing legal framework, depending on the applicable law. At the same time, a majority of three judges did not accept that the Court could create an enforceable civil-union status carrying a bundle of legal entitlements; the Chief Justice and Kaul J, in the minority, would have held that the State is obliged to recognise unions of queer couples and to grant them benefits under law. This distinction matters: Supriyo did not re-criminalise or delegitimise queer intimacy; it left the creation of a comprehensive legal status to the legislative domain.8
The Court also recorded the Union Government’s statement that a committee chaired by the Cabinet Secretary would examine practical entitlements of queer couples. The Union constituted that committee by a gazette notification of 16 April 2024. Subsequent governmental measures have addressed discrete issues such as ration-card treatment, joint bank accounts and nomination, prison visitation, healthcare access and protection against violence. These measures are significant because they acknowledge that queer households encounter practical legal barriers. They are, however, administrative and sector-specific; they do not amount to a general law of partnership.9
The continuing statutory gap
The absence of marriage or civil-union status has consequences across multiple fields. Under the SMA, the statutory structure remains framed around male and female parties; Supriyo declined to judicially substitute gender-neutral terms throughout that scheme. The difficulty is not confined to the ceremony of marriage. Family status is used elsewhere in law as a threshold for benefits, obligations and decision-making authority.10
Adoption illustrates the problem. The Adoption Regulations, 2022 permit a prospective adoptive parent to adopt irrespective of marital status, subject to prescribed conditions (a single male, for instance, may not adopt a girl child), while joint adoption is structured around a married couple: no child may be given in adoption to a couple unless they have at least two years of stable marital relationship, save in relative or step-parent adoptions. Thus, a queer individual may be eligible to adopt singly, but an unmarried same-sex couple cannot presently adopt jointly as a couple. The distinction is legally important, because queer persons are not categorically barred from adoption. In Supriyo, the majority declined to hold the stable-marital-relationship requirement void, while the minority would have read it down to permit joint adoption by unmarried couples, including queer couples.11
Surrogacy is more explicitly marital and gendered. The Surrogacy (Regulation) Act, 2021 defines a “couple” as a legally married Indian man and woman and separately provides limited eligibility for an “intending woman.” Consequently, the present statutory model does not provide same-sex couples access to surrogacy as a couple. Succession and spousal benefits similarly depend on the governing statute, nomination rules, employment policy or testamentary arrangements. A will or nomination may solve particular problems, but neither is a complete substitute for legal kinship: they do not automatically reproduce the entire package of rights and obligations that follows from recognised marital status.12
This fragmentation demonstrates why administrative accommodation has limits. A department can clarify ration-card eligibility or a bank can permit nomination, but such measures cannot comprehensively determine maintenance obligations, intestate succession, matrimonial property, dissolution, parentage or inter se duties. A durable solution therefore requires legislation capable of defining both benefits and responsibilities.
Comparative pathways: courts, legislatures and institutional design
Comparative experience shows that there is no single institutional route to marriage equality. In the United States, Obergefell v. Hodges held that the Fourteenth Amendment requires States to license and recognise marriages between two people of the same sex.13 Canada adopted a legislative route through the Civil Marriage Act, 2005, defining civil marriage as the lawful union of two persons while expressly preserving protections for religious officials.14
Taiwan followed a mixed constitutional-legislative path. Constitutional Court Interpretation No. 748 held in 2017 that excluding same-sex couples from a permanent, intimate and exclusive union violated constitutional guarantees of freedom of marriage and equality, and directed legislative action within two years. The legislature subsequently enacted the Act for Implementation of J.Y. Interpretation No. 748 in 2019.15 In the United Kingdom, same-sex marriage was introduced through legislation in different parts of the country; Northern Ireland’s framework took effect in 2020.16 Thailand likewise moved beyond a civil-partnership model: amendments to its Civil and Commercial Code established marriage equality, with the new framework taking effect in 2025.17
These examples are relevant to India not because foreign models can simply be transplanted, but because they reveal two design principles. First, civil recognition of same-sex couples can coexist with protections for religious freedom; the legal question of civil status need not require every religious body to solemnise every marriage. Second, legislatures can address consequential questions of parentage, succession, dissolution and benefits more systematically than a court interpreting a single statute. That institutional advantage reinforces, rather than ends, the need for legislative engagement after Supriyo.
Constitutional morality, democratic deliberation and legislative responsibility
One of the central tensions in the marriage-equality debate is the relationship between constitutional rights and social disagreement. Navtej made clear that constitutional rights do not depend upon numerical strength or popular approval. At the same time, Supriyo emphasised that creating or restructuring a legal institution with extensive statutory consequences may require legislative choices. These propositions can coexist. Constitutional morality constrains discriminatory state action, while institutional competence may affect the remedy a court is willing to fashion.
Public opinion also complicates claims that Indian society speaks with a single voice. A 2023 Pew Research Center survey, conducted before the Supriyo ruling, reported that 53% of Indian adults surveyed favoured legal same-sex marriage and 43% opposed it.18 Political positions have likewise varied. Before the Supreme Court, the Union, through the Solicitor General, argued that whether legal recognition can be granted to a union of non-heterosexual individuals is a question for the legislature, as the elected representatives of the citizens, rather than for the courts.19 The Indian National Congress’s 2024 manifesto, for its part, promised, after consultation, legislation recognising civil unions for LGBTQIA+ couples.20 Such positions demonstrate that civil recognition has entered ordinary democratic debate.
The most defensible legislative response would begin with legal consequences rather than symbolism alone. Parliament and, where constitutionally competent, State Legislatures could consider a civil-partnership or civil-union statute defining eligibility, registration, dissolution, maintenance, succession, medical decision-making and related incidents. A second route would be systematic amendment of secular family legislation, including the SMA, accompanied by consequential amendments across connected statutes. Either route would require careful treatment of adoption, parentage and reproductive law rather than assuming that changing the word “marriage” in one enactment resolves the entire legal architecture.
A rights-consistent framework should also distinguish civil status from religious solemnisation. Civil recognition concerns the State’s allocation of legal rights and duties; religious communities may raise separate questions of doctrine and ceremony. Comparative legislation demonstrates that these spheres can be separated through appropriately drafted conscience protections without denying civil legal status.
Conclusion
India’s queer-rights jurisprudence has travelled from criminalisation to constitutional recognition, but family law has not completed the same journey. Naz Foundation, NALSA, Puttaswamy and Navtej established a powerful constitutional vocabulary of dignity, privacy, autonomy and equality. Supriyo did not erase that vocabulary; it exposed the remedial and institutional limits of using constitutional adjudication to reconstruct an interconnected family-law regime.
The post-Supriyo administrative measures are valuable but incomplete. They can reduce specific forms of hardship, yet they cannot create a coherent status governing succession, maintenance, parentage, dissolution and the many other incidents that law attaches to family relationships. The central legal deficit is therefore not simply the absence of the label “marriage”; it is the absence of a comprehensive and predictable framework for queer partnerships.
Legislative action is consequently the next critical site of reform. Whether India ultimately adopts gender-neutral civil marriage, a civil-union model, or a staged combination of both, the framework should be assessed against constitutional guarantees of equality, dignity and personal autonomy, while clearly allocating rights and responsibilities. The constitutional recognition of queer citizens has already been established. The unresolved task is to translate that recognition into an intelligible law of relationships.
*****
Footnotes
1. Supriyo @ Supriya Chakraborty v. Union of India, 2023 INSC 920, W.P. (C) No. 1011 of 2022 (India Oct. 17, 2023); Supriyo @ Supriya Chakraborty v. Union of India, R.P. (C) No. 1866 of 2023 in W.P. (C) No. 1011 of 2022 (India Jan. 9, 2025) (dismissing review petitions).
2. Naz Found. v. Gov’t of NCT of Delhi, (2009) 160 DLT 277, 293–94, 302–03 (Del. H.C.) (India); see India Const. arts. 14, 15, 21.
3. Suresh Kumar Koushal v. Naz Found., (2014) 1 SCC 1 (India), overruled by Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).
4. Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 SCC 438 (India).
5. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 (India).
6. Navtej Singh Johar, (2018) 10 SCC 1.
7. Supriyo, 2023 INSC 920, ¶ 340(g)–(h) (Chandrachud, C.J.), https://api.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf; id. ¶ 149(i), (v) (Bhat, J.); id. ¶ 4(c), (e)–(f) (Narasimha, J.).
8. Supriyo, 2023 INSC 920, ¶ 340(i), (m) (Chandrachud, C.J.) (discussing the right of transgender persons in heterosexual relationships to marry under existing law and distinguishing gender identity from sexual orientation); id. ¶¶ 2–3, 11, 19–20 (Kaul, J.); id. ¶ 149(ii), (iv), (ix) (Bhat, J.); id. ¶ 4(g) (Narasimha, J.).
9. Press Info. Bureau, Gov’t of India, Host of Measures Taken by Government of India for the LGBTQI+ Community (Sept. 1, 2024), https://www.pib.gov.in/Pressreleaseshare.aspx?PRID=2050655&lang=2®=48 (recording the gazette notification of Apr. 16, 2024 constituting the committee).
10. The Special Marriage Act, No. 43 of 1954, India Code (1954), §§ 4, 15; Supriyo, 2023 INSC 920, ¶ 340(h) (Chandrachud, C.J.); id. ¶ 149(v) (Bhat, J.).
11. Adoption Regulations, 2022, reg. 5(2)–(3), G.S.R. 726(E), Gazette of India, Extraordinary, pt. II, sec. 3(i) (Sept. 23, 2022), https://cara.wcd.gov.in/PDF/adoption_regulations_2022_2709.pdf; Supriyo, 2023 INSC 920, ¶ 149(x) (Bhat, J.); id. ¶ 4(h) (Narasimha, J.); id. ¶ 340(p) (Chandrachud, C.J.); id. ¶ 3 (Kaul, J.) (broadly agreeing with the Chief Justice).
12. The Surrogacy (Regulation) Act, No. 47 of 2021, India Code (2021), §§ 2(1)(h), 2(1)(s), 4(iii)(c), https://www.indiacode.nic.in/bitstream/123456789/17046/1/A2021-47.pdf.
13. Obergefell v. Hodges, 576 U.S. 644, 675–76, 680–81 (2015).
14. Civil Marriage Act, S.C. 2005, c. 33, §§ 2, 3 (Can.).
15. J.Y. Interpretation No. 748 (Const. Ct. May 24, 2017) (Taiwan); Act for Implementation of J.Y. Interpretation No. 748 arts. 1–4, 27 (Taiwan), https://mojlaw.moj.gov.tw/ENG/LawContentE.aspx?LSID=FL091164&media=print.
16. Marriage (Same Sex Couples) Act 2013, c. 30 (UK); The Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019, SI 2019/1514 (UK); Marriage and Civil Partnership (Northern Ireland) Regulations 2020, SI 2020/742 (UK).
17. Civil and Commercial Code Amendment Act (No. 24), B.E. 2567 (2024) (Thai.); Gov’t Pub. Rels. Dep’t, Thailand Ready for Equal Marriage Law to Take Effect on 23 January 2025 (Jan. 19, 2025), https://thailand.prd.go.th/en/content/page/index/id/356609.
18. Sneha Gubbala, Jacob Poushter & Christine Huang, How People Around the World View Same-Sex Marriage, Pew Rsch. Ctr. (Nov. 27, 2023), https://www.pewresearch.org/short-reads/2023/11/27/how-people-around-the-world-view-same-sex-marriage/.
19. Supriyo, 2023 INSC 920, ¶ 42 (Chandrachud, C.J.) (summarising the Solicitor General’s submissions for the Union of India); see also id. ¶ 59.
20. Indian Nat’l Cong., Nyay Patra: Manifesto, Lok Sabha Elections 2024, Equity: Senior Citizens, Persons with Disabilities, and LGBTQIA+ (2024), https://manifesto.inc.in/en/equity/.