Courts accept that family goes beyond marital bonds. It's high time society did so too

Indian Express

16 hours ago

When the Supreme Court of India decriminalised consensual same-sex relations in Navtej Singh Johar v. Union of India in 2018, it did more than just strike down an archaic colonial law. It recognised that queer individuals are entitled to equality, dignity and autonomy under the Constitution. During the proceedings, one of the counsels had emphatically argued, 'How strongly must we love knowing we are unconvicted felons under Section 377?' This unfettered practice of love, in the face of historical discrimination, was highlighted as a key argument for repealing Section 377 of the Indian Penal Code. Going beyond the decriminalisation of same-sex relationships, the judgment said: 'The right to love and to find a partner, to find fulfilment in a same-sex relationship is essential to a society which believes in freedom under the constitutional order based on rights.'
Since Navtej, India's courts have seen a growing number of habeas corpus petitions involving queer individuals seeking protection from harassment, violence, or unlawful confinement by their natal families. The first such case was decided in 2018 in Sreeja S v. The Commissioner of Police, Thiruvananthapuram, where the Kerala High Court upheld the right of a lesbian woman to live with her partner without fear of reprisals from her family. While granting protection to such couples, courts have held that if the two parties are consenting adults, they have the right to stay with a person of their choice, irrespective of their gender identity or sexual orientation. These cases, often involving young couples fleeing social ostracisation or forced separation, reveal a simple truth: Decriminalisation is not enough. Without legal recognition of queer relationships, queer people remain vulnerable.
Last month, the Madras High Court held that 'marriage is not the sole mode to found a family,' reflecting a reality long lived by queer communities which is often overlooked by the law. The Court's observation came in response to a habeas corpus petition filed by a 25-year-old woman from Tirupathur, who sought the release of her partner from unlawful detention by the partner's family. Rooted in a growing body of queer jurisprudence, the Court recognised the couple's right to form a family beyond the traditional, and arguably limiting, framework of marriage and heterosexual norms. This judgment is significant because it broadens the legal understanding of queer families, making clear that the right to family life is not limited to marriage, nor confined to heteronormative relationships. Grounded in the Supreme Court's consistent affirmation that consenting adults have the fundamental right to choose their partners, regardless of caste, as held in Lata Singh v. Union of India (2006); religion, as in Shafin Jahan v. Asokan K M (2018); or gender and sexuality, as in Navtej Singh Johar v. Union of India (2018).
Crucially, in Navtej, the Court clarified that the rights of queer persons encompass a broader, affirmative recognition of their right to love, dignity, and self-determination. This reasoning was further extended in Supriyo v. Union of India (2023). In this case, although the Supreme Court stopped short of legalising same-sex marriage, it unequivocally acknowledged the 'right to form intimate associations' as a core aspect of constitutional liberty. Central to its reasoning was also the decision in Deepika Singh v. Central Administrative Tribunal (2022), which expanded the legal understanding of 'family' beyond biological or marital ties, noting that the law must adapt to reflect lived realities, thereby making space for families of choice. The Court also relied on Devu G Nair v. State of Kerala (2023), wherein the Supreme Court had laid out comprehensive guidelines for how courts and authorities should handle cases involving queer couples. As part of the directions, the SC had urged lower courts to act swiftly, avoid bias, ensure police protection where needed, and strictly prohibit attempts to alter a person's sexual orientation or gender identity through 'conversion therapy' practices.
In a legal and social landscape still largely preoccupied with marriage as the benchmark of legitimacy, judgments such as these mark a radical and necessary shift. It transforms constitutional guarantees into concrete protections, especially for those abandoned by family, society, or the state. In doing so, they reinforce that queer individuals are full rights-bearing citizens, entitled not only to protection from harm but also to affirmation, autonomy, and a sense of belonging. Looking ahead, the challenge is not merely to defend these hard-won judicial victories, but to build upon them and ensure that the law does more than shield queer lives.
The writer is a socio-legal scholar working on gender and sexuality rights