INDIA Law and Practice Contributed by: Rishabh Shroff, Kunal Savani and Chirag Shah, Cyril Amarchand Mangaldas
not subjected to any disparity as far as inheritance to the estate of the deceased is concerned. Under the Hindu Adoption Act, 1956, from the date of adoption, the child is under the legal guardianship of the new adopted parent(s) and thus should enjoy all the benefits from those family ties. This also means that this child, therefore, is cut off from all legal ben - efits (eg, property and inheritance) from the family who had given them up for adoption. Surrogacy Surrogacy in India has been recognised via the Sur - rogacy Regulation Act, 2021 (SRA). The SRA defines surrogacy as a procedure in which a woman bears a child for the benefit of the intended parents and permits altruistic surrogacy but outlaws commercial surrogacy. Altruistic surrogacy does not entail finan - cial remuneration to the surrogate mother (in cash or in-kind). According to the eligibility language in the SRA, only a woman who is a family or close friend of the couple would be able to become a surrogate. Further, only legally wedded couples can opt for surrogacy – there - fore LGBTQ+ couples or couples in live-in relation - ships are not permitted to avail surrogate pregnancy arrangements. 9.2 Same-Sex Marriage Presently, same-sex marriage is not a recognised form of legal marriage in India. In October 2023, India’s Supreme Court, in Supriyo v Union of India , unanimously held that while decrimi - nalising homosexuality was a major step forward, the right to marry is not a fundamental constitutional right and that any legal recognition – whether marriage or civil unions – must come from parliament, not the judi - ciary. Since then, in January 2025 the Supreme Court dis - missed review petitions against its 2023 verdict, reaf - firming that marriage equality remains solely the leg - islature’s domain. Meanwhile, in June 2025, the Madras High Court rec - ognised the concept of “chosen families”, empow -
ering LGBTQIA+ individuals to create familial bonds legally, even if formal marriage is not available yet. While marriage equality in India remains unresolved and awaits legislative action, recent court decisions and evolving legal interpretations indicate better social recognition of same-sex couples. In the absence of legal recognition of same-sex mar - riages, same-sex partners do not qualify as “rela - tives” under 92 (5)(g) of the ITA and, consequently, any transfer of assets between partners may attract tax implications. Same-sex partners have no automatic inheritance rights under any personal law or the Indian Succession Act, 1925, and intestate succession laws do not recognise a surviving same-sex partner as an heir. 9.3 Cohabitation and Unmarried Couples Civil/Domestic Partnerships Civil partnerships are not expressly conferred legal status in India. However, the courts have recognised the rights of adults to live together consensually. The law creates a presumption in favour of marriage and against concubinage when long-term cohabitation has taken place between the couple over an extended period of time. In the context of the Hindu law, the Supreme Court of India has held that a child born out of void or voidable marriage (which may cover civil partnerships) is con - ferred the status of a legitimate child and is entitled to claim a share in self-acquired properties of their parents. Tax and succession planning Similar to same-sex couples, for the purposes of tax and succession planning, unmarried partners are treated as separate individuals. They do not fall under the definition of “relatives” as per Section 92 (5)(g) of the ITA and any inter se transfer of assets is not tax exempt. If a partner passes away without a valid Will, the surviving partner has no automatic inheritance rights and the deceased partner’s estate will devolve to their legal heirs. Insurance providers restrict beneficial nomination to close blood relatives or legal dependants. Most banks, however, permit nomination of any individual regardless of the nature
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