Courts in India welcomed Pride Month this year with two landmark judgments relating to the rights of individuals in queer (non-heteronormative) relationships: the Kerala High Court’s Zahhad and Others v. State of Kerala and Another and the Madras High Court’s MA v. Superintendent of Police, Vellore and Others. I discuss these two cases in this piece while positioning them in the broader context of Indian family law and LGBTQ+ jurisprudence.

On Family and the Law

“Family” is not just a biological or social unit; it is also a legal and juridical one. Indeed, many rights are the privilege of those the law might recognize as one’s family. However, family, as defined under the law in the Indian context, has not been inclusive of queer familial units. For instance, in the Indian subcontinent, transgender and intersex communities have a millennia-old tradition of forming chosen family units and living together. Yet, it wasn’t until the NALSA v. Union of India (2014) judgment that the Supreme Court recognized transgender individuals as full legal citizens of India. In Deepika Singh v. Central Administrative Tribunal and Ors. (2022), Chief Justice Dhananjaya Yeshwant Chandrachud (para. 26) observed:

The predominant understanding of the concept of a “family” both in the law and in society… ignores the fact that many families do not conform to [a heteronormative] expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships.

Now, while the apex Court in Deepika Singh recognized an expansive interpretation of family, the following discussion shows that ground-level realities remain hostile, even lethal, to queer relationships and individuals.

The Zahhad case

Zahhad (a trans man) and Ziya (a trans woman) welcomed their child in 2023; however, when the Kozhikode Corporation issued the birth certificate, Zahhad was mentioned as the “mother (transgender),” while Ziya was mentioned as the “father (transgender).” Rightly dissatisfied with being misgendered, the couple asked the Corporation to issue a revised certificate, but their requests were rejected.

The couple petitioned the Kerala High Court, which opined that Zahhad (a trans man) and Ziya (a trans woman) are allowed to use the term “parents” instead of the gendered words “mother” and “father.” This is a significant step towards a more equal society where LGBTQ+ families are accepted and treated fairly.

The MA case

But if we have a right to love, as the Supreme Court’s Johar judgment established, do we also have a right for that love to be protected from “families” that would illegally detain, torture, and abuse queer family members, preventing them from entering into a consensual relationship with another adult? In India, there have been cases of families forcibly sending LGBTQ+ individuals to conversion therapy, and same-sex couples routinely face threats of honor killings and persecution (indeed, from strangers and relatives alike). This was clear in MA.

In MA v. Superintendent of Police, a 25-year-old woman from Tamil Nadu, referred to as “MA” in the case proceedings, filed a writ of habeas corpus in the Madras High Court to free her 22-year-old partner, who was kidnapped by her biological family after they found out about their queer relationship. Lamenting the behavior of the victim’s parents, especially her mother, the Court ruled this is an instance of illegal detention and a violation of Article 21 of the Constitution, which guarantees personal liberty (para. 9). Further, the judgment held that the concept of family should be understood to transcend marriage or blood to include “chosen families,” which is now (after NALSA) an accepted legal concept in LGBTQ+ jurisprudence.

Conclusion

These two judgments, Zahhad and MA, further solidify constitutional protections offered to LGBTQ+ individuals in India. In India, courts have played a key role in both articulating and protecting the rights of marginalized communities. The cases signify a growing judicial willingness to protect the human rights of queer individuals, whether in their roles as parents or partners, and to expand the constitutional meaning of family beyond the confines of blood, marriage, and gendered societal norms. However, as laws are seldom effective without social acceptance, recognition of queer families in the courtroom must be accompanied by changes in policy and public consciousness.