Image of the Madras High Court (where the Doctrine of Familial Associations was recognized as a potential solution to provide legal recognition to non-conventional families in India) taken by author
This is the first part of a two part blog contribution analysing the validity and need for the Deed of Familial Relations, a novel proposition based on principles of contract which aims to provide equal legal recognition and rights to non-conventional families, primarily LGBTQIA+ families in India.
By: Suha K
Despite it being 11 years after recognising the rights of transgenders and 7 years after decriminalising homosexuality, India’s legal system continues to be designed almost exclusively for traditional heterosexual families, leaving millions of Indian citizens belonging to the LGBTQIA+ community and other non-conformist family structures such as homosexual couples, people in polyamorous relationships and other families of choice in a state of legal invisibility that denies them the fundamental right to form families of their choice which subsequently denies them rights to inheritance, medical decision-making, adoption, housing protections, and social security benefits.
The recent times, however, have seen two very progressive judgments that have helped progress the rights of LGBTQIA+ citizens concerning forming a family of their choice. The first one was issued by the Madras High Court in M. A. v. Superintendent of Police on 22 May 2025, formally recognizing the concept of a chosen family. The judges took a wider interpretation to hold that “Marriage is not the sole mode to found a family.” The Kerala High Court followed this with its decision in Zahhad & Ors. v. State of Kerala & Anr dated 2 June 2025, which allowed a transgender couple to register themselves with the gender-neutral term parents, effectively recognising their identities, which fell out of the conventional 'father/mother' binary framework.
These two judgements give legal weight to the formal establishment of the Deed of Familial Association, a framework recognised by the Madras High Court in Sushma v. State in 2023 as a potential solution to protect LGBTQIA+ citizens’ right to form families of their choice, parallel to the existing family law system While the Sushma judgement was passed to provide recognition for same-sex marriages within the existing legal framework, the recent judgements of this year, notably the Madras High Court’s recognition of a chosen family, give a wider scope to this innovative framework.
A Brief Introduction to the Deed of Familial Association
Rooted in principles of love, care, and companionship, and legally backed by the Indian Contract Act of 1872, the DFA allows adults to formalise familial bonds through registered agreements. The law already recognizes that promises made from natural affection carry legal weight. Section 2(e) defines contracts as promises involving mutual consideration, while Section 25(1)means that when it is an agreement regarding love and natural affection, consideration is not required. This allows the DFA to work within India's existing legal system, giving people a formal way to declare: "This is my family."
Unlike marriage with its hetero-normative assumptions, the DFA accommodates diverse configurations such as same-sex partnerships, transgender families, polyamorous arrangements, and chosen families based on emotional rather than biological bonds. As the ideator of the Doctrine of Familial Association, Prof. Tiju Thomas defines it, family includes "All persons who live in the same household, forming an economic and social unit." This encompasses Trans Mother-Trans Daughter structures, polyamorous arrangements, and structures centred on companionship rather than romance. Advocate Menaka Guruswamy noted in Supriyo v. Union of India that “Marriage is not just a question of dignity. It is also a bouquet of rights." The DFA framework grants protections and benefits are key for the protection of basic human rights, which are currently limited to conventional structures, including insurance coverage, inheritance rights, medical consent, and access to welfare schemes like the public distribution system.
Comparative Study of Global Models
DFA is an extremely novel and unique framework recognizing families of choice, which has found some level of legal relevance only in India. The most common modes of recognition of LGBTQIA+ families are marriage and civil partnerships. These forms of recognition rely on contractual principles very much like the Doctrine of Familial Relations. The United Kingdom, for example, requires partners to sign a civil partnership. This results in the couple being entitled to rights such as property rights, adoption, and social security benefits. A similar system is also noted in France with their Pacte civil de solidarité system. The DFA is a parallel system much like Norway’s initial Partnerskapslovenwhich system, which created a parallel recognition system that enhanced human rights compliance instead of creating legal conflicts. Such a system is extremely essential for India, which has an extremely complicated family law system with multiple systems based on the many religions of its citizens and a secular legislation making it difficult to incorporate LGBTQIA+ rights directly into the current framework.
A case of recognition of a diverse family structure, which is not a monogamous homosexual relationship, is the recognition of polyamory by Courts and states in the USA and Canada. The state of California, for example, passed the Family Code §7612(c) in 2013, which permits the recognition of more than two parents in cases where “recognizing only two parents [i.e., biological parents] would be detrimental to the child.”. Canada also followed suit in 2018 when a court in Newfoundland and Labrador formally recognized three unwed adults of a polyamorous family as a child's legal parents. These serve as a base for identity and familial ties for children in DFA families.
Constitutional Validity
The DFA's constitutional strength rests on the key fundamental rights of Articles 14, which guarantees Right to Equality, 19 which grants freedom of speech and expression, and 21 of the Indian Constitution which guarantees fundamental right to life and personal liberty, all of which protect human rights of Indian citizens and have been interpreted by courts to reflect deeper understanding of human dignity, personal freedom, and equality.
The Francis Coralie Mullin judgment expanded Article 21 beyond mere survival to include living with dignity, encompassing the right to form relationships, care for others, and live authentically. The DFA gives practical form to this by legally recognizing bonds formed through mutual care and natural affection.
Article 19(1)(c)'s freedom of association extends beyond unions to deeply personal relationships. In Shakti Vahini v. Union of India, the Supreme Court observed that everyone has the freedom to choose partners regardless of traditional norms, acknowledging that intimacy lies at liberty's heart. The DFA creates space for such choices to be validated and protected. A similar view was also taken by the US Supreme Court in Roberts v. United States Jaycees, which recognised family ties as what it defines as an intimate association, where it stated that “individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference, therefore, safeguards the ability independently to define one's identity that is central to any concept of liberty.” However, this right to form a family is a substantive due process liberty interest rather than in the First Amendment's freedom of association clause itself. We can also see parallels with the European Court of Human Rights’ groundbreaking decision in Schalk and Kopf v. Austria, where it held that same-sex couples can establish family life for the purposes of Article 8 of the European Convention on Human Rights, which protects one’s right to respect for private and family life.
Deepika Singh v. PGIMER, Chandigarh challenged narrow family definitions, noting that the nuclear family image fails to reflect many Indians' lives. The Court affirmed that "atypical" families, such as single-parent households, grandparent-led families, chosen families are equally deserving of recognition. The Court cautioned against using "black letter law" to deny support to non-traditional families, particularly regarding social welfare. This judgement, in a way, expands the ambit of the DFA from protecting LGBTQIA+ families to non-conventional families, which need not have members belonging to the LGBTQIA+ community.
The court stated that the law must not disadvantage those who don’t fit into conventional molds, especially when it comes to social welfare schemes. This observation has special significance for the DFA, which seeks not only legal legitimacy but also access to benefits – like insurance, inheritance, and medical decision-making –that are often tied to marital or blood-based family structures.
In Navtej Singh Johar, Justice Chandrachud stated that "the right to love and be loved is central to liberty," affirming that adults should be free to build intimate relationships of their choosing. Justice Indu Malhotra's concurring opinion recognised the mass denial of human rights to the LGBTQIA+ by stating that "the LGBT community has been subjected to discrimination and harassment for centuries" and that legal systems must actively work towards remedying historical human rights violations rather than exacerbate them through technical exclusions.
In Part II, we will further look at DFA as a means of addressing India’s international obligations with regards to rights of LGBTQIA+ individuals and the practicality concerns in making this a reality.
Bio:
Suha K is a third-year B.A LL.B (Hons) student from Gujarat National Law University, Gandhinagar. Their primary interests lie in public policy, human rights law, constitutional law, and family law.