INTRODUCTION
A child who has two people who raise them deserves two parents on paper, yet in India, love without legal recognition often leaves one functional parent invisible and the child vulnerable. When a same-sex couple is building a home together, it is their bond, not the child’s biology, that defines family. Yet when the law looks away, that bond becomes fragile.
In a country constitutionally promising equality and dignity, this legal silence has real consequences: in hospitals, classrooms, inheritance records, and moments of loss, a child may discover that one of their parents simply does not exist in the eyes of the State.[1]
While India has made progress in recognizing dignity and equal citizenship for LGBTQIA+ persons,[2] Its family laws remain stuck in an outdated, heteronormative frame.[3] Not granting legal recognition to queer parents inconveniences adults, but it endangers children by compromising their security, stability, and the basic protections that come with being part of a family. If India is to truly uphold the best interests of the child, it needs to reimagine guardianship beyond gender and genetics: to recognize caregiving adults for what they are — parents.
LEGAL BACKDROP: OUTDATED STATUTES AND THE “BEST INTERESTS” LODESTAR
The foundation of all law as relates to a child in India-that is, the Best Interests of the Child principle-is embedded in the Guardians and Wards Act, 1890 (GWA),[4] Hindu Minority and Guardianship Act, 1956 (HMGA),[5] and the Juvenile Justice (Care and Protection of Children) Act, 2015.[6] India is further bound by the UN Convention on the Rights of the Child (CRC)[7], which makes the best interest of the child a paramount consideration in all actions concerning children.
Yet these very statutes that pledge to uphold a child’s welfare remain structurally biased.[8] The HMGA[9] defines “natural guardians” in a gendered hierarchy: the father and, after him, the mother. Even as the Supreme Court in Githa Hariharan v. RBI[10] Reinterpreted the HMGA to make it more gender-equal, the law still excludes non-biological or non-marital partners.
Although the JJ Act is child-centric in an essential sense, it has traces of exclusion in it. Previous CARA regulations demanded a stable marital relationship, which was practically a prohibition of queer couples unable to marry legally. The law, in essence, only applies the “best interests” test after confirming heteronormative eligibility, a contradiction that punishes children of same-sex parents for who their parents are.[11]
WHERE THE LAW FAILS: THE INVISIBLE PARENT AND THE FRAGILE FAMILY
For queer families, invisibility in the law translates to instability in life. Here, the absence of statutory recognition produces three major legal gaps: lack of parentage presumption, barriers to adoption, and dependency on litigation.
- The “Legal Stranger” Problem
In heterosexual marriages, a child automatically enjoys a presumption of parentage —that is, the husband of the birth mother is legally assumed to be the father. This presumption secures the child’s welfare, inheritance, and identity. It is this very basic protection that queer families are denied. The non-biological partner remains a legal stranger, notwithstanding their role as caregivers. Such a law denies children their right to two responsible parents, leaving them economically and emotionally vulnerable, especially in the case of separation or the death of the legal parent.
- Adoption and Administrative Barriers
Even with judicial progress, the administrative structures continue to practice discrimination. Older rules of CARA[12] Left out unmarried couples and imposed sex-based ceilings, including barring single men from adopting girls.[13] In reality, this still leaves queer couples navigating an opaque bureaucracy: The non-legal partner often has to file for “second-parent adoption” through cumbersome procedures that have forced families to litigate simply to prove their legitimacy.
- Litigation Dependence and Functional Parenthood
Queer parents not given statutory status are forced to rely on precarious principles of de facto or functional parenthood, where courts are obliged to rule on the case-specific facts of caregiving, a process that is time-consuming, invasive, and emotionally taxing. This discretion of the judiciary keeps families pending and children in legal insecurity. This position was recently echoed by the Madras High Court, which affirmed that same-sex partners can form a family even though they remain outside India’s formal legal framework for marriage and parentage.[14]
JURISPRUDENTIAL NUDGES: COURTS LEADING WHERE STATUTES LAG
Clearly, the judicial system has provided solid constitutional premises of inclusive guardianship, but the legislature has not responded to it.[15]
In Githa Hariharan v. RBI[16] and ABC v. State (NCT of Delhi)[17], the Supreme Court reaffirmed that the best interest of the child was paramount, therefore allowing flexibility in the interpretation of who the guardian could be. The legal understanding of family itself has been enlarged in Deepika Singh v. CAT.[18] It showed that the relationships between bodies of the family can be of a domestic or unmarried partnership or of a queer relationship, and that these families are no less deserving of protection by social welfare laws. Earlier, NALSA v. Union of India[19] granted gender identity protection under Article 15[20] and placed a duty on the State to ensure non-discrimination in all spheres. Further, Navtej Singh Johar v. Union of India[21] held that sexual orientation forms part of dignity and, therefore, also part of privacy. Most recently, Supriyo v. Union of India[22] invalidated the CARA requirement of a “stable marital relationship” and ordered that gendered terms such as “male/female applicant” be replaced in favour of “Prospective Adoptive Parent 1/2.”[23]
Taken together, these judgments have sketched the outline of a more inclusive legal order. But in the absence of legislative reform, queer parents remain dependent upon ad hoc judicial relief—a privilege few can afford.[24]
CHILD-CENTRED HARMS: WHEN THE LAW DOESN’T SEE YOUR PARENT
For a child, legal invisibility isn’t theoretical; it’s an everyday wound.
Consider a child brought up by two mothers. In a hospital emergency, one parent may be denied the right to sign a consent form because her name isn’t on any legal document. If the recognized parent dies intestate, the surviving parent cannot inherit or act as the child’s guardian. Even in mundane settings like enrolling in school, applying for a passport, or updating official IDs bureaucratic forms that demand “father/mother” categories humiliate families into invisibility.
These harms are neither rare nor abstract. They violate Article 2(2)[25] Of the CRC, prohibiting discrimination based on a child’s parents’ status, and Principle 24(C) of the Yogyakarta Principles, asserting that a parent’s sexual orientation cannot be deemed incompatible with a child’s best interests. Thus, the Indian State’s refusal to recognize non-biological queer parents violates its duty as parens patriae—to protect, not endanger, the welfare of its minors.[26]
REFORM BLUEPRINT: A CONCRETE, CHILD-CENTRIC PATH FORWARD
What India requires is a guardianship framework that reflects equality, empathy, and the realities of modern family structures.
Statutory Fixes: Gender-Neutral Language and Parentage Presumption
- Gender-Neutral Rewording: Substitute the terms father and mother in the HMGA[27] and GWA[28] with the word parent. Restate “natural guardian” in Section 6[29] Of the HMGA to mean a biological, adoptive, or legal parent. This eliminates gender hierarchies and places caregiving above biology.
- Statutory Parentage Presumption or Voluntary Acknowledgment of Parentage (VAP): Create a presumption that where two adults are raising or intending to raise a child together, both of them are legal parents until proved otherwise. This would create a state of stability and equality at birth or adoption without any reference to marital status and would guarantee the rights of children without having to wait until there is marriage equality.[30]
Adoption and Administrative Reforms
- Rewrite the regulations of CARA to completely eliminate the “stable marital relationship” requirement and use gender-neutral language, such as “Prospective Adoptive Parent 1/2.”
- Review Section 57(4)[31] Of the JJ Act to permit single-parent adoptions regardless of gender or sexual orientation.
Procedural and Transitional Safeguards
- Allow an interim Parentage Registry that enables queer parents to file affidavits acknowledging functional caregiving roles for essential services, such as schooling and healthcare.
- Compel courts to make an explicit analysis of the child’s best interests and also ensure that the child’s point of view is heard, as provided in GWA Section 17(3).[32]
These reforms do not change the marriage laws but merely align guardianship with constitutional morality and the child’s best interests.
CONCLUSION: SEEING THE UNSEEN PARENT
Guardianship has to cease being a test of who the law acknowledges and begin being an assurance of who protects the child. The continued invisibility of queer parents is not just a legal omission; it is a moral failure.[33] India’s judiciary has shown the way; the legislature must follow with courage and compassion. Recognizing caregiving adults as legal parents does not threaten tradition; it strengthens families and protects the children within them.[34] For every child to grow up safe, loved, and secure, both parents need to be seen. Until then, India’s guardianship law will remain incomplete, and so will its promise of equality.
Author(s) Name: Apoorv Dubey
References:
[1] Vidhi Centre for Legal Policy, Queering the Law: Introduction (June 2020) https://vidhilegalpolicy.in/wp-content/uploads/2020/06/Queering-the-Law_Introduction.pdf accessed 4 December 2025.
[2] Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[3] Deepika Singh v Central Administrative Tribunal (2022) 7 SCC 545.
[4] Guardians and Wards Act, No. 8 of 1890, ss 7, 19(b).
[5] Hindu Minority and Guardianship Act, s 6.
[6] Juvenile Justice (Care and Protection of Children) Act 2015.
[7] Convention on the Rights of the Child (20 November 1989), arts 2–3.
[8] Vidhi Centre for Legal Policy, Queering the Law: Introduction (2020) https://vidhilegalpolicy.in/wp-content/uploads/2020/06/Queering-the-Law_Introduction.pdf accessed 4 December 2025.
[9] Hindu Minority and Guardianship Act 1956.
[10] Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228.
[11] Kathy T Graham, ‘Same-Sex Couples: Their Rights as Parents, and Their Children’s Rights as Children’ (2008) 48 Santa Clara Law Review 999.
[12] Central Adoption Resource Authority, Adoption Regulations 2017.
[13] Central Adoption Resource Authority, Adoption Regulations 2017, reg 5(2)(c).
[14] ‘Same-sex couples have no right to marry but can form families, Madras HC’ (SCC Online, 7 June 2025) <https://www.scconline.com/blog/post/2025/06/07/same-sex-couples-have-no-right-to-marry-but-can-form-families-madras-hc-legal-news-scc-times/ > accessed 4 December 2025.
[15] Du Toit v Minister for Welfare and Population Development 2002 (10) BCLR 1006 (CC) (South Africa).
[16] Githa Hariharan v. Reserve Bank of India (1999) 2 S.C.C. 228.
[17] ABC v State (NCT of Delhi) (2015) 10 SCC 1 (India).
[18] Deepika Singh v Central Administrative Tribunal (2022) 7 SCC 545 (India).
[19] National Legal Services Authority v Union of India (2014) 5 SCC 438 (India).
[20] Constitution of India, Article 15.
[21] Navtej Singh Johar v Union of India (2018) 10 SCC 1 (India).
[22] Supriyo v. Union of India, Writ Petition (Civil) No. 1011 of 2022.
[23] Nayantara Ravichandran, ‘Legal recognition of same-sex relationships in India’ (Winter 2014) 5 Journal of Indian Law and Society https://www.manupatra.com accessed 4 December 2025.
[24] Rishabh Saxena & Sushim Shukla, ‘Adoption by Same-Sex Couples in India: Addressing Myths, Prejudices, and Realities, 4 International Journal of Contemporary Research in Multidisciplinary’ 3 (May–June 2025).
[25] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, art 2(2).
[26] Anonza Priyadarshini, ‘Right to be a parent and heteronormative laws: Aftermath of Navtej Singh Johar judgment’ (Summer 2022) ILI Law Review.
[27] Hindu Minority and Guardianship Act 1956.
[28] Guardians and Wards Act 1890.
[29] Hindu Minority and Guardianship Act 1956, s 6.
[30] Jennifer L Rosato, ‘Children of same-sex parents deserve the security blanket of the parentage presumption’ (2006) 44 Family Court Review 74.
[31] Juvenile Justice (Care and Protection of Children) Act 2015, s 57(4).
[32] Guardians and Wards Act 1890, s 17(3).
[33] Law Commission of India, ‘Consultation Paper on Reform of Family Law’ (August 2018).
[34] Upasana Sajeev, ‘Juvenile Justice Act Prevails Over Muslim Personal Law; Adopted Child Has Same Status As Biological Child: Madras High Court’ (LiveLaw, 22 October 2025) https://www.livelaw.in/high-court/madras-high-court/madras-high-court-jj-act-prevails-over-muslim-personal-law-307529 accessed 4 December 2025.
