Laws shape society, but they also reflect the values and assumptions embedded within it. In India, the legal framework across criminal law, marriage, adoption, and domestic violence has historically been structured around heteronormative assumptions-the belief that heterosexual relationships are the norm and that other forms of intimacy are either deviant or simply invisible. This heteronormative bias in Indian law affects millions of LGBTQ+ individuals who find themselves excluded, marginalized, or criminalized by the very systems meant to protect all citizens.
Table of Contents
Criminal law and the legacy of Section 377
For over 150 years, Section 377 of the Indian Penal Code stood as a symbol of legal discrimination against same-sex relationships. Enacted during British colonial rule in 1860, this provision criminalized “carnal intercourse against the order of nature” with punishments extending to life imprisonment. While the language appeared gender-neutral, in practice it was used primarily to prosecute and harass individuals in same-sex relationships.
The legal battle against Section 377 spanned decades. In 2009, the Delhi High Court in Naz Foundation v. Government of NCT of Delhi declared the provision unconstitutional insofar as it applied to consensual sexual conduct between adults. This landmark decision was short-lived. In 2013, the Supreme Court in Suresh Kumar Koushal v. Naz Foundation reversed the High Court’s ruling, reinstating Section 377 and leaving the LGBTQ+ community once again vulnerable to criminalization.
The turning point came on September 6, 2018, when a five-judge Constitutional Bench of the Supreme Court in Navtej Singh Johar v. Union of India unanimously held that Section 377 was unconstitutional to the extent it criminalized consensual sexual conduct between adults of the same sex. The Court recognized that the provision violated fundamental rights to equality, privacy, dignity, and freedom of expression. Chief Justice Dipak Misra stated that “constitutional morality would prevail over social morality” to ensure human rights protections regardless of majoritarian approval.
Despite this historic victory, the law’s framework remains incomplete. While consensual same-sex relationships are no longer criminal, the legal system has not fully embraced LGBTQ+ individuals in other critical areas of life.
Marriage and personal laws: limiting rights to heterosexual couples
Marriage in India is governed by a complex system of personal laws based on religion. The Hindu Marriage Act defines marriage as a union between a “bride and bridegroom”, the Muslim Personal Law describes marriage as a contract between a “man” and a “woman,” and the Indian Christian Marriage Act similarly restricts marriage to heterosexual unions. These definitions leave no room for same-sex couples seeking legal recognition of their relationships.
Even the secular Special Marriage Act of 1954, which allows inter-religious and inter-caste marriages, defines eligible parties as a “man” and a “woman.” This exclusion has profound consequences. Without legal marriage recognition, same-sex couples cannot access rights to inheritance, divorce proceedings, maintenance, or spousal benefits that heterosexual married couples take for granted.
In October 2023, the Supreme Court in Supriyo Chakraborty v. Union of India addressed petitions seeking recognition of same-sex marriage. While the Court affirmed the right of LGBTQ+ individuals to cohabit with dignity and privacy, it declined to recognize same-sex marriages, leaving the matter to Parliament. This decision highlights the gap between decriminalization and full equality-LGBTQ+ individuals can no longer be prosecuted for their relationships, but they still cannot formalize them through legal marriage.
Adoption laws and heteronormative bias
Adoption laws in India reflect similar heteronormative assumptions. The Juvenile Justice (Care and Protection of Children) Act, 2015 defines “couple” as “a married man and woman” who have been living together for at least two years. This definition explicitly excludes same-sex couples from joint adoption, even though individual LGBTQ+ persons can adopt as single parents.
The Guidelines Governing Adoption of Children 2015 do not explicitly mention sexual orientation as a factor in determining suitability for adoption. However, by restricting couple-based adoption to heterosexual married couples, the law creates a discriminatory framework that denies same-sex couples the opportunity to build families together. A single LGBTQ+ individual may adopt, but their partner has no legal relationship to the child, creating insecurity and legal complications.
This restriction is particularly troubling given that India is home to millions of children in need of loving homes. Research consistently shows that children raised by same-sex parents fare no worse than those raised by heterosexual parents. Yet the law continues to prioritize a narrow definition of family over the welfare of children and the rights of LGBTQ+ prospective parents.
Rape and domestic violence laws: gendered definitions
India’s laws on sexual violence and domestic violence are written with heteronormative and gender-specific language that excludes many victims. Section 375 of the Indian Penal Code, which defines rape, recognizes only women as victims and men as perpetrators. This framework leaves male and transgender victims of sexual assault without legal recourse under rape law.
The situation became more complicated in July 2024 when the Bharatiya Nyaya Sanhita replaced the Indian Penal Code and deleted Section 377 entirely. While Section 377 had been problematic in criminalizing consensual same-sex conduct, it was also the only provision that addressed non-consensual same-sex sexual acts. With its removal and no gender-neutral rape law in place, male and transgender individuals who experience sexual violence can only seek remedies under provisions for “grievous hurt,” which carry lighter sentences and do not adequately capture the gravity of sexual assault.
Similarly, the Protection of Women from Domestic Violence Act, 2005 is explicitly gender-specific, protecting only women from domestic violence. While the Act was crucial for addressing violence against women in patriarchal structures, its exclusion of male and LGBTQ+ victims means that individuals in same-sex relationships who experience domestic abuse have limited legal protections. They cannot access remedies like protection orders, residence rights, or maintenance that the Act provides to women.
The gender neutrality debate
The question of whether rape and domestic violence laws should be made gender-neutral has generated significant debate. Advocates for gender-neutral laws argue that sexual violence and domestic abuse can affect anyone regardless of gender, and that recognition in law would validate the experiences of marginalized victims and enable easier reporting. Critics worry that gender-neutral laws might dilute protections for women, who remain the primary victims of such violence in patriarchal society, or lead to misuse through false complaints.
However, this debate often overlooks a middle ground: expanding protections to include more victims without removing existing safeguards for women. Countries like the United Kingdom and South Africa have enacted laws that protect all victims while maintaining specific provisions where needed. India could adopt a similar approach that recognizes diverse experiences of violence while prioritizing those most vulnerable.
The path forward
Heteronormativity in Indian law is not merely a theoretical concern-it has real consequences for millions of people. LGBTQ+ individuals cannot marry their partners, face barriers to building families through adoption, and lack adequate legal protections when they experience violence. These gaps deny them dignity, security, and the ability to fully participate in society.
The Navtej Singh Johar judgment was a crucial step, but decriminalization alone is insufficient. True equality requires comprehensive legal reform across marriage, adoption, and criminal law to recognize and protect all forms of intimate relationships and family structures. It requires shifting from a framework that assumes heterosexuality as the default to one that embraces the diversity of human relationships.
What do you think? Should Indian law move toward recognizing same-sex marriages and joint adoption by same-sex couples? How can the legal system balance protections for women with the need for inclusive laws that recognize all victims of sexual violence and domestic abuse?
References
- https://globalfreedomofexpression.columbia.edu/cases/navtej-singh-johar-v-union-india/
- https://translaw.clpr.org.in/case-law/navtej-singh-johar-vs-union-of-india-section-377/
- https://www.frontiersin.org/journals/sociology/articles/10.3389/fsoc.2025.1622997/full
- https://restthecase.com/knowledge-bank/adoption-rights-of-same-sex-couples-in-india
- https://www.legalserviceindia.com/legal/article-10416-can-homosexual-couples-adopt-in-india-.html
- https://www.equaldex.com/region/india
- https://www.ibanet.org/new-criminal-laws-legalise-male-rape-in-India
- https://ijirl.com/wp-content/uploads/2025/06/DOMESTIC-VIOLENCE-AGAINST-MEN-IN-INDIA-LEGAL-GAPS-AND-THE-NEED-FOR-REFORMS.pdf
- https://lhsscollective.in/gender-neutral-rape-laws-in-india-limitations-of-the-bns/
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