The Binary Barrier: Assessing the Exclusion of Same-Sex and Non-Binary Unions from India’s Matrimonial and Parental Legislations

This research project investigates an entrenched family law regime in India that continues the long-standing bias toward heterosexual couples and explores what is termed the “Binary Barrier”. The Binary Barrier is a phrase used for the “systemic legal architecture” that only accounts for couples in the male/female dyad and excludes from legal recognition same-sex couples and non-binary individuals. Although the Supreme Court of India has expanded constitutional understanding of dignity, privacy, and personal autonomy in cases such as Navtej Singh Johar and Justice K.S. Puttaswamy, a substantial rights gap persists for queer and non-binary persons in the context of marriage and family formation. The statutory exclusion of same-sex couples and other types of couples from the Special Marriage Act, 1954 is the main focus of the research. Using both comparative and doctrinal methodologies argue that the legislative insistence on gender-specific nomenclature for a marriage acts as a gatekeeping mechanism to deny LGBTQ+ couples’ access to the “bundle of rights” that accompany a marriage, which includes not only symbolic rights, but also rights to alimony, succession, tax benefits, and medical proxy. The research assesses how the CARA regulations and the HAMA set forth unmanageable barriers for non-binary and same-sex couples. “Joint adoption” is an exclusion from that, and the complexities of guardianship laws create a very precarious legal status for the children that will be raised in these unions. The paper propensity to defer to Parliament that produces a stalemate between recognizing discrimination legally and the inability to provide a remedy. The study concludes that the Binary Barrier is not a neutral social policy choice but a constitutional problem implicating equality, non-discrimination, and dignity. It calls for a shift from gender-stereotyped statutory interpretation toward constitutional morality and recommends reform of family law to recognise the diversity of modern Indian families.