LGBT Rights Claims for Marriage Equality and the Possibilities of Transforming Indian Family Law

Abstract

The Indian Supreme Court decriminalized homosexuality in 2018 and recognized the equal constitutional citizenship of LGBT+ Indians. Since then, several petition seeking marriage equality have been filed before Indian courts. Parallelly, critics have argued that traditional approaches to LGBT+ equality ignore problematic family law institutions and have stressed the need to think beyond legal inclusion to recognize diverse families. These arguments are not unique to India. Claiming LGBT+ rights within existing family law institutions has divided LGBT+ activists the world over. The commonly advanced argument is that assimilation into existing patriarchal social institutions disregards radical transformational possibilities. However, experiences in jurisdictions like the United States, challenge this premise and show how family law can potentially be transformed through LGBT+ rights claims. While we still await an authoritative judicial pronouncement on marriage equality in India, I argue that legally recognizing marriage equality may positively impact existing family laws by generating arguments for expanding recognition of diverse families. I show that achieving marriage equality through the recognition of LGBT+ relational rights, comprising LGBT+ family equality and the right to legal recognition of LGBT+ relationships, has the potential for progressively expanding Indian parenthood laws. I specifically demonstrate how this is possible in guardianship, assisted reproduction, and adoption laws and may benefit diverse different-sex families, single parents, and persons in non-marital relationships.

Keywords: LGBT+ Rights, Marriage Equality, Sam-Sex Marriage, Indian Family Law, Comparative Family Law, Indian Constitutional Law, Comparative Constitutional law