Intentional Kinship: Same Sex Marriage And Chosen Family Doctrine
Aksa Mariya V Joseph, Manipal Academy of Higher Education, MAHE Bengaluru
ABSTRACT
In India, same sex marriage has moved beyond arguments of legalization towards specific administration and empowerment strategies, after the refusal of the Supreme Court to grant full marriage equality. Even in the 21st century, same sex marriage is not legal, while consensual relationships between same sex couples have been legal since 2018. To this day, people do not have the right to marry by their choice, instead of granting them these rights, the Madras High Court came up with the Chosen family doctrine. This doctrine serves as a stepping stone for future advancement in related laws, as the law is never constant. However, as of now, it is used to protect the rights of same-sex couples, and it also reflects an emerging legal consensus that focuses on understanding family as a plural and inclusive term. Chosen family doctrine is a concept where people form kinship without any legal or biological bond, rather form a relationship based on mutual love, care, and shared experiences, often arising from rejection by traditional families. It also recognizes same-sex couples as a small family unit under Article 21 of the Indian Constitution (right to life and liberty) and its implications for protection from natal family harassment. Also, under this article, ‘dignity’ includes the right to form relationships with those they love. While on one hand, this doctrine gives some rights to same sex couples, and on the other, it denies them other necessary rights. This paper aims to rationalize why same sex marriage should be legalized and how the chosen family doctrine is acting as a stepping stone for the same.
Keywords: Supriyo Chakraborty case, Navtej Singh Johar case, Yogyakarta Principles, Article 21, Legal Limitations,
