SC: ‘Domestic, Unmarried Partnerships & Queer Relationships’ Also A Family

Defining a family in terms of a heterosexual marriage and biologcal kids is a patriarchal, capitalist construct that needs to be dismantled in favour of inclusion and equality.

In a recent judgement, the Supreme Court of India made a few observations challenging the popularly understood definition of a family as a nuclear unit made up of a heterosexual couple and their children in a judgement. They urged for the inclusion of atypical family units under the purview of laws.

The bench comprising Justices DY Chandrachud and AS Bopanna pointed out that “familial relationships may take the form of domestic, unmarried partnerships and queer relationships”. The judgement also mentioned that such non-conventional families deserve “not only protection under law but also benefits available under social welfare legislation”.

These observations were delivered with a judgement in the case of context a Central government employee who had been denied maternity leave because she had already availed child care leave earlier to care for her husband’s children from a previous marriage.

Law defines family in the narrow terms of heterosexual marriages

What is a family unit? From Indian law to your next door neighbour, all seem to back the idea that a typical nuclear family consists of married man and woman and their kids. It is an unchanging unit and all laws are sculpted with the realities of such a family in mind. The maternity leave the woman had applied for was denied on the grounds of the non-traditional family setting she came from.

The laws of the land and social attitudes heavily disfavour single parent households or queer relationships. The basic human right to marry is not available to queer people even after almost four years of decriminalisation of the draconian Section 377. Even for households with single mothers, where laws have been amended recently to be inclusive of them, for instance abortion laws or adoption laws, the process is always riddled with complications that prohibit single women from smooth access.

Further, as the judgement pointed out that non-normative family structures due to death, separation or divorce, along with adoption or remarriage, can also alter the composition of a traditional family unit, which would then not fit the popular imagination around what a family consists of. These families “may not be typical but they are as real as their traditional counterparts”.

We have a judgement, but will this translate to real change?

This judgement comes at a time when the judiciary, particularly the Supreme Court, have pronounced a string of progressive judgements attempting to broaden the scope of certain laws, by breaking the patterns of oppression traditional structures have put in place.

This could be seen in the Madras High court judge undertaking counselling to better understand non-normative sexualities before pronouncing a sensitive judgement, to the Kerala high court reuniting a lesbian couple who were separated by their parents. The Supreme Court recently also upheld single women’s right to accessing abortion under the MTP (Amendment) Act, 2021. But that has proved to be not enough.

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Such judgements need to be followed through by implementation and easing up the access to rights and welfare policies for the traditionally disenfranchised groups.

From inheritance to healthcare, many intrinsic rights of individuals are left beyond the purview of law in cases of live-in relationships and queer relationships, but as this judgement points out “the black letter of the law must not be relied upon to disadvantage families which are different from traditional ones”.

Defining a family in terms of a heterosexual marriage and biologcal kids is a patriarchal, capitalist construct that needs to be dismantled in favour of inclusion and equality. Families range from single parent households to chosen families of friends and queer people that go beyond the confines of a traditional marriage that feminists critique. And every one of these arrangements should be able to access the rights the individuals involved possess as equal citizens.

Image source: a still from the film Badhaai Do

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About the Author

Kamalika

A postgraduate student of Political Science at Presidency University, Kolkata. Describes herself as an intersectional feminist and an avid reader when she's not busy telling people about her cats. Adores walking around and exploring read more...

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