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 second 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
While the first part dealt with the conceptual framework of the Doctrine of Familial Associations, its validity within India’s legal and constitutional framework, and a comparison with global practices of recognition of diverse families, this part will attempt to analyse the ability of the DFA to address India’s international obligations and some practical concerns with its potential implementation.
Doctrine of Familial Association and India’s International Obligations
India operates under a dual system with regard to international law, which means that international law only becomes part of the Indian legal regime when it gains recognition through parliamentary legislation. This framework is particularly relevant when examining how India's international human rights commitments intersect with potential domestic policies like the Doctrine of Familial Association.
The Navtej Johar judgment reaffirmed India’s international human rights obligations under the International Covenant on Civil and Political Rights, which it has ratified. It specifically mentioned the State’s obligations under Article 23, which recognizes "the family as the natural and fundamental group unit of society," entitled to state protection, and Article 17, which prohibits arbitrary interference with family life. This aligns perfectly with the DFA's purpose of recognizing and respecting the right to build lives with one’s family of choice.
When looking at the Human Rights Committee’s concluding observations on the fourth periodic report of India, which is the most recent one, as per the mandate of ICCPR, we can see an expression of regret concerning India’s lacking framework when it comes to granting legal recognition and rights to same-sex couples and recommends adoption of legislation in line with the same. Implementation of the DFA would mean addressing these recommendations for India.
One relevant addition is Paragraph 3 of General Comment No. 16 of the Human Rights Committee, which asserts that any lawful interference with privacy must be consistent with the Covenant’s aims and reasonable in context. Unlike other ICCPR Rights such as Art 19(3) which addresses freedom of expression, Article 17 does not contain any explicit clause specifying possible grounds for restriction. Instead, it relies on the concept of arbitrariness as the key standard for determining when state interference with privacy rights is permissible.
The Committee further clarified its stand in paragraph 3 by stating that even interference authorized by domestic law may still constitute arbitrary interference if it is not reasonable in the particular circumstances. It is explained further in paragraph 4, which clarified that an act of state can be arbitrary if it is inappropriate, unjust, lacks predictability, or is disproportionate to the legitimate aim pursued.
This framework was applied in Toonen v. Australia, where the Committee examined whether Tasmania's criminalization of homosexual conduct constituted arbitrary interference with privacy. In paragraphs 8.2-8.6, the Committee analyzed whether the interference served a legitimate purpose and whether it was proportionate, ultimately finding that the laws constituted arbitrary interference as they were not necessary for the protection of public morals in the circumstances of the case.
The arbitrariness test thus requires a contextual assessment of whether the interference is lawful under domestic law, if it serves a legitimate aim consistent with the Covenant, if it is necessary and proportionate to achieve that aim, and if it is reasonable in the particular circumstances. This provides a flexible yet rigorous standard for evaluating privacy restrictions. A similar approach is taken in India as well, with the Supreme Court defining arbitrariness as actions that are "unreasonable, capricious, without adequate principle or non-rational basis” in the landmark case E.P. Royappa v. State of Tamil Nadu with regards to the Fundament Right to Equality under Article 14 of the Indian Constitution which is one of the rights based on which the Fundamental Right to Privacy was upheld by the Indian Supreme Court in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors.
One more international human rights obligation on India is the International Covenant on Economic, Social and Cultural Rights, which it ratified in 1979. One relevant provision is Article 2 whose mandate is reaffirmed in paragraphs 7, 32, and 37 of CESCR’s General Comment No. 20 on Art 2, by stating that State Parties are to guarantee that the rights enshrined in the Covenant are exercised without discrimination of any kind, including on grounds of sexual orientation, stating that it is indispensable in compliance with the Article. One more relevant provision from this Covenant is Article 9, which recognizes the right of everyone to social security to protect people against various risks such as illness and injury, which was affirmed in paragraphs 2 and 4 of General Comment No. 19. Also relevant is Article 10, which recognizes the family as "the natural and fundamental group unit of society", and requires parties to accord it "the widest possible protection and assistance”.
Finally, we have Article 12, which addresses rights to sexual and reproductive health, which is reaffirmed in General Comment No. 22. While paragraph 23 emphasizes equal access to such health services for people irrespective of their gender and sexual identity, paragraph 45 places the obligation on the State to uphold these rights through appropriate legislative, administrative, budgetary, judicial, promotional, and other measures. This is particularly relevant as diverse families are not recognised in India, which severely restricts their reproductive rights under The Assisted Reproductive Technology (Regulation) Act, 2021 and Surrogacy (Regulation) Act, 2021, which currently restricts access to reproductive technology such as IVF to married heterosexual couples.
Together, these Articles not only support the DFA as a solution to remove discrimination and erasure of non-conventional families in the current Indian family law structure, but also support inclusive policies for LGBTQIA+ persons, especially those facing marginalization due to gender identity or disability, ensuring addressal of systemic barriers in accessing healthcare, employment benefits, and family-related support. While the Committee has not published any specific comments regarding India’s protection of LGBTQIA+ persons due to the non-publication of the 6th Report, which was due in 2013, it has recommended that Russia and Kazakhstan amend their laws to protect LGBTQIA+ persons and to extend benefits to them that are reserved for heterosexual married couples. So, the binding nature of the Articles on India as a ratifier nation, the General Comments and Special Comments discussed above, give weight to this postulate in conjunction.
Another persuasive international document is the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, which validates diverse forms of families and states that there must be equal access to social welfare and other benefits, among many other groundbreaking points governing the rights of the LGBTQIA+ community. This has been recognised and relied upon for definitions by the Supreme Court in Navtej Singh Johar v. Union of India and NALSA v. Union of India. In NALSA v. Union of India, the Supreme Court even went as far as to say that the principles are not inconsistent with various fundamental rights guaranteed under the Indian Constitution, which are mandated to be enforced, giving further weight to the DFA.
Implementation Challenges
While the DFA aligns well with India’s international obligations, constitutional values, and contract law, the real test lies in its implementation across different areas of legal and administrative practice. Are existing laws enough to support it, or does the system need to catch up?
The DFA framework applies only to adults capable of entering legal contracts, ensuring relationships are built by people exercising informed autonomy. Legally, the DFA satisfies all Contract Act requirements: free consent, legal capacity, valid consideration through natural affection, lawful purpose, and proper execution. However, significant gaps remain. Succession laws don't include DFA partners as legal heirs, only giving rights to family created by marriage and birth, potentially leaving partners without inheritance rights. Healthcare also presents challenges with Clause 7.16 of The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, which currently doesn't recognize DFA partners' right to make medical decisions when the patient is not in a state to make decisions for themselves, creating dangerous situations in emergencies requiring next-of-kin permissions.
Social welfare programs such as ration cards, health insurance, and housing schemes operate under rules presuming traditional household units, potentially excluding DFA families due to paperwork incompatibility.
Doctrine of Familial Association: A Constitutional Imperative
The 2025 Madras and Kerala High Court judgments remind us that law must reflect lived realities. Protecting diverse family structures is a constitutional responsibility.
The DFA offers a practical, rights-based pathway for building families outside conventional marriage structures. It doesn't challenge traditional families but provides space for others, working within existing laws using established constitutional values and contract law principles.
As the Supreme Court noted in Navtej Singh Johar, "Constitutional morality cannot be allowed to be the prisoner of popular morality." Uncommon family structures don't deserve less respect or protection.
There's no competition between traditional and non-traditional families. Recognizing one doesn't erase the other. Democracy's strength lies in making room for everyone. The DFA expands legal frameworks to protect all families formed through love, care, and mutual support.
Moving the DFA from theory to reality requires coordinated legal system action. Legislative and judicial cooperation must address implementation gaps, ensuring every Indian citizen enjoys the right to form a family of their choice.
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.