Beyond Marriage Equality

**Bhavya Pareek

The Constitutional Imperative for Recognizing Queer Relationships

The Supreme Court’s 2023 decision in Supriyo @ Supriya Chakraborty v. Union of India marked a paradoxical moment in India’s LGBTQ+ rights movement. While the judgment affirmed the fundamental right of queer couples to cohabit without discrimination, its refusal to grant legal recognition under marriage laws has left millions in a state of civil limbo. While ostensibly respecting the separation of powers, the Court’s deferral to Parliament ignored its transformative constitutional jurisprudence established in cases like Navtej Singh Johar (2018) and KS Puttaswamy (2017). As Justice D.Y. Chandrachud poignantly noted in his dissent: “The denial of legal recognition to same-sex unions strikes at the heart of dignity and self-worth. When the law refuses to acknowledge such unions, it denies queer couples the full citizenship that is their due.”

This judicial reluctance has created an urgent need for legislative intervention. While full marriage equality remains the ultimate goal, civil unions present a pragmatic intermediate solution that could bridge the gap between constitutional rights and social acceptance. The global experience demonstrates that civil unions have often served as crucial stepping stones toward full marriage equality, particularly in jurisdictions where cultural or religious opposition remains strong. India, with its complex interplay of constitutional rights, federal structure, and cultural conservatism, must now seriously consider this path. This article makes both a legal and practical case for civil unions as not merely a compromise but a constitutional necessity under Articles 14, 15, and 21 of the Indian Constitution.

Defining Civil Unions: Legal Nature and Distinction from Marriage

Civil unions are legally recognised partnerships that provide many of the rights and obligations of marriage without using the terminology of “marriage.” While the specific rights vary by jurisdiction, civil unions typically include inheritance rights, hospital visitation privileges, tax benefits, and, in some cases, parental rights. The key distinction lies in their social and symbolic weight – marriage carries deep cultural and religious connotations that civil unions deliberately avoid.

This distinction becomes particularly important in the Indian context, where marriage is governed by personal laws tied to religious identities. As legal scholar Flavia Agnes notes: “The special status accorded to marriage in Indian law makes civil unions a politically viable alternative that can bypass contentious debates about religious sanctity.” Unlike marriage, civil unions can be established through a secular, contractual framework similar to the Special Marriage Act, making them more palatable to conservative groups while still providing substantive rights.

Internationally, the implementation of civil unions has taken various forms. Civil unions were initially introduced as separate but equal institutions in some countries like New Zealand before being merged into marriage equality. Others, like France, maintain parallel systems where couples can choose between PACS (civil solidarity pact) and marriage. The flexibility of civil unions makes them particularly suited to India’s pluralistic legal system, where they could be introduced as amendments to existing secular marriage laws or through standalone legislation. Importantly, civil unions need not be permanent – as seen in countries like the UK and Uruguay, they can serve as transitional arrangements that eventually give way to full marriage equality.

The Supriyo Judgment and the Judicial Abdication of Responsibility

The Supriyo case represented a historic opportunity for the Supreme Court to extend its progressive jurisprudence on LGBTQ+ rights into the realm of relationship recognition. However, the majority opinion, authored by Justice Bhat, declined to recognize a constitutional right to marriage or civil unions for same-sex couples, deferring the matter to Parliament and emphasizing judicial restraint. This reasoning was particularly disappointing when contrasted with earlier decisions such as Shafin Jahan v. Asokan K.M. (2018), where the Court had expansively interpreted the right to choose one’s partner under Article 21. In his separate opinion, Chief Justice Chandrachud dissented in part, advocating for the recognition of a right to civil unions and emphasizing the State’s obligation to ensure equality and dignity for queer couples.

The judgment’s flaws become apparent when examined through comparative constitutional law. The South African Constitutional Court in Fourie v. Minister of Home Affairs (2005) faced similar questions about judicial overreach. Still, it took a more courageous stance, ordering the government to recognise same-sex unions even if through a separate civil partnership framework. As South African jurist Edwin Cameron noted: “Constitutional courts cannot shrink from their duty to protect minorities simply because the issues are politically contentious.” The Indian Supreme Court’s reluctance is even more puzzling given its activist history in cases involving environmental protection, privacy rights, and gender equality.

The dissenting opinion by Justice Sanjay Kishan Kaul offered a more principled approach. Drawing upon the “living tree” doctrine of constitutional interpretation, Justice Kaul argued that the Special Marriage Act’s gender-neutral language (“spouse”) could and should be read to include same-sex couples. The majority’s failure to adopt this position represents a significant setback in India’s constitutional journey toward substantive equality for LGBTQ+ citizens.

The Global Precedent: How Civil Unions Have Advanced Queer Rights

The international experience with civil unions provides compelling evidence of their potential to advance queer rights while managing social resistance. France’s Pacte Civil de Solidarité (PACS), introduced in 1999, offers perhaps the most instructive example. Initially conceived as a compromise to avoid the controversy surrounding same-sex marriage, the PACS gradually transformed French society’s acceptance of queer relationships. Sociologist Eric Fassin’s research demonstrates that “the PACS did more than grant legal rights – it normalised same-sex relationships in the public imagination, making eventual marriage equality inevitable.” By 2013, when France legalised same-sex marriage, over 94% of French people supported relationship recognition for queer couples in some form.

The United Kingdom’s experience similarly demonstrates the strategic value of civil unions. Tony Blair’s government introduced the Civil Partnership Act 2004 as an alternative to marriage, granting virtually identical legal rights while avoiding the terminology that might provoke conservative backlash. What began as a separate institution eventually became the foundation for full marriage equality in 2014. The UK later extended civil partnerships to heterosexual couples, creating a pluralistic system where couples can choose between marriage, civil partnership, or cohabitation agreements. This evolutionary approach could be particularly suitable for India, where social attitudes change rapidly but unevenly across different regions and communities.

South Africa’s Civil Unions Act (2006) presents perhaps the most relevant model for India. Facing strong opposition from religious groups, the South African Parliament crafted a dual system where same-sex couples could choose between marriage or civil unions. This pragmatic approach secured legal recognition while respecting cultural sensitivities. As Indian legal scholar Arvind Narrain observes: “South Africa’s experience proves that civil unions need not be second-class status – they can be a bridge to full equality that accelerates social acceptance.” The Act’s success is evident in recent surveys showing that over 70% of South Africans now support same-sex marriage, up from just 35% when civil unions were introduced.

The Human Impact: Why Civil Unions Matter

The absence of legal recognition for queer relationships in India has created a humanitarian crisis with tangible consequences. Consider the case of Dr. Kavita Arora and Ankita Khanna, the couple at the heart of the Supriyo case. Despite being in a committed relationship for over a decade, they cannot make medical decisions for each other during emergencies. When Ankita was hospitalised in 2021, Kavita was denied visitation rights – a routine privilege automatically granted to married heterosexual couples.

This legal vacuum extends to financial security. Without inheritance rights recognised under the Hindu Succession Act or Indian Succession Act, queer partners must rely on wills that biological family members can easily contest. As lawyer Menaka Guruswamy notes: “Every school admission form, every medical consent sheet becomes a potential moment of trauma when the law refuses to see your family as legitimate.” Civil unions would provide immediate relief in all these areas while the battle for full marriage equality continues.

The psychological toll of this legal erasure cannot be overstated. A 2023 study by the Tata Institute of Social Sciences found that 68% of queer couples in long-term relationships reported chronic anxiety about their legal vulnerability. As a mental health professional, Dr Trinetra Haldar explains: “When the state refuses to recognise your love, it internalises a message of unworthiness that no amount of personal affirmation can fully counteract.” Civil unions would provide legal protections and psychological security that come with social validation.

The Path Forward: Implementing Civil Unions in India

Through its transformative provisions, India’s constitutional framework provides a robust legal grounding for civil union recognition. Articles 14, 15 and 21 collectively establish a trinity of protections that mandate relationship recognition – guaranteeing equality before the law, prohibiting discrimination based on sexual orientation (as established in Navtej Singh Johar), and protecting the fundamental right to intimate association through privacy jurisprudence (KS Puttaswamy). This constitutional architecture creates permissibility and a positive obligation for state action. Comparative constitutionalism reveals how similar frameworks have been operationalised globally – from South Africa’s direct constitutional challenge route to the UK’s parliamentary civil partnership model. The Indian Supreme Court’s recent jurisprudence on transformative constitutionalism suggests the judiciary may increasingly view relationship recognition through this obligatory lens rather than as discretionary policy.

Legislative Architecture for Civil Union Recognition

While the Special Marriage Act, 1954 (SMA) is widely understood as India’s secular marriage law, it’s important to recognize that it remains embedded within a framework designed around heterosexual, monogamous, and largely patriarchal conceptions of partnership. It functions as an opt-out from personal law, but not a reimagination of the institution of marriage itself. It does not—and was never intended to—accommodate the diversity and fluidity of queer relationships. Thus, extending the SMA to queer couples through gender-neutral amendments would undoubtedly offer pragmatic legal gains, but it may also risk re-inscribing queer relationships into a structure that has historically excluded, regulated, and normalized only certain ways of loving, living, and belonging.

That is why the idea of civil unions under the SMA—distinct from marriage—is not just a compromise in the face of judicial hesitation or legislative delay, but normatively powerful in its own right. Queer movements in India have not solely been about inclusion within existing systems; they have also been about transformation—about questioning the very systems that exclude or invisibilize. Marriage, even when secularized, remains tied to historical scripts of gender roles, caste compatibility, reproductive intent, and state control over intimacy. Its cultural baggage doesn’t simply disappear with legal amendments.

In contrast, a civil union framework under the SMA could be designed from the ground up, not as an extension of heterosexual marriage, but as a new legal category—one that affirms the autonomy of individuals to structure their relationships on their own terms. This could mean legally recognizing multiple forms of caregiving, non-nuclear kinship arrangements, and relational commitments that fall outside the marriage ideal. By grounding civil unions in consent, mutual obligation, and legal rights—rather than ceremonial formalities and heteronormative assumptions—the law would better reflect the lived realities of queer partnerships.

Importantly, placing civil unions within the SMA framework is a way to use the strengths of existing legal infrastructure—such as district-level registration, independence from religious doctrines, and administrative familiarity—while rejecting the symbolic dominance of marriage as the only legitimate form of union. It respects India’s constitutional commitment to legal pluralism without replicating the exclusionary foundations of personal laws.

Now that the Supreme Court in Supriyo v. Union of India has explicitly deferred the matter to Parliament, the path ahead is no longer about interpreting the right to marry under Article 21. Instead, it is about crafting a legal response that is not just inclusive, but imaginative—one that moves beyond the binary of “marriage or nothing” and creates space for recognition without assimilation. A civil union framework, tailored through amendments to the SMA, holds the promise of legal equality without erasure of queer difference.

The battle for queer rights in India has always been more than a legal project—it is a social, cultural, and political movement. Recognizing civil unions is not a fallback. It is a chance to build something radically better.

Judicial Pathways for Progressive Interpretation

In the likely scenario of legislative inertia, the judiciary possesses multiple constitutional tools to advance recognition. The Supreme Court could employ its powers under Article 142 to (1) mandate interim recognition of civil unions through an expansive interpretation of the Special Marriage Act’s existing gender-neutral provisions, (2) direct the Law Commission to prepare model implementation guidelines, or (3) order pilot programs in progressive states as test cases. In Joydeep Sengupta & Russell Blaine Stephens v. Union of India, a same-sex couple legally married abroad sought recognition of their marriage in India under the Foreign Marriage Act and challenged the denial of an OCI card to the non-Indian spouse. The Delhi High Court admitted the petition, signalling that the right to partnership and family life for queer individuals may flow from Article 21’s protections of privacy, autonomy, and dignity. While still pending, the case marks an important step in the constitutional articulation of civil union rights.. This judicial route would likely follow the pattern in other Commonwealth jurisdictions – where initial narrow rulings gradually expand into broader recognition principles through consecutive challenges. However, as the South African Constitutional Court demonstrated in Fourie,  judicial interventions are most effective when coupled with clear directives for legislative follow-up.

Overcoming Political-Social Resistance

Historical and contemporary evidence provides powerful counterarguments to common objections. Ancient Indian texts like the Arthashastra (300 BCE) and medieval-era Hijra marriage traditions demonstrate indigenous precedents for diverse relationship recognition. Mughal court records contain numerous documented same-sex unions that were legally recognised in their historical context. Strategic implementation should: (1) initially position civil unions as expanding choice for all couples rather than exclusively LGBTQ+ focused; (2) emphasise practical benefits like medical rights and inheritance protections that resonate across ideological lines; and (3) leverage India’s existing secular marriage infrastructure to avoid unnecessary religious opposition. The successful awareness campaigns in Taiwan and Australia provide proven models for humanising these issues through personal narratives while respecting cultural values.

Conclusion: A Necessary Step Toward Full Equality

The introduction of civil unions in India would represent more than a legal reform – it would mark the state’s first formal acknowledgement that queer love deserves protection. As the South African Constitutional Court declared in Fourie: “The law must evolve to serve the marginalised, not freeze them in exclusion.”

This is not about special rights but equal citizenship. Civil unions would provide immediate relief to millions while maintaining the ultimate goal of marriage equality. The Constitution’s transformative vision demands nothing less. Justice Chandrachud reminded us in Supriyo: “The arc of constitutional morality always bends toward justice – but sometimes it needs the judiciary to push it.”

The time for civil unions is now. India’s LGBTQ+ citizens have waited long enough.

**Bhavya Pareek is a fourth-year B.A., LL.B. (Hons.) student at NALSAR University of Law, Hyderabad. Her areas of interest include public policy, constitutional law, and regulatory frameworks, with a growing curiosity about how law interacts with social and institutional change. She enjoys writing to explore complex legal questions and to contribute to conversations on governance and reform. Bhavya is particularly interested in using research and writing as tools to better understand the role of law in shaping public outcomes. This piece represents part of her broader effort to engage with contemporary legal issues beyond the classroom.

**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.