Supreme Court expands definition of family; says it may take form of domestic, unmarried partnerships or queer relationships

Satya Prakash

New Delhi, August 29

Expanding the traditional definition of family, the Supreme Court has said it may take the form of domestic, unmarried partnerships or queer relationships.

“The predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one’s familial structure, and the fact that many families do not conform to this expectation to begin with,” a Bench led by Justice DY Chandrachud said.

“Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering,” said the Bench which also included Justice AS Bopanna.

The top court’s remarks came in a verdict that said a working woman can’t be denied her statutory right to maternity leave for her biological child only because her husband has two children from a previous marriage and she had availed the leave to take care of one of them. The remarks assume significance in view of demands for recognizing LGBT marriages, civil unions and allowing live-in couples to adopt or have children through surrogacy after de-criminalization of homosexuality in 2018.

 “These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation,” the Bench said.

A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce, it said, adding, “Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering.”

It said that these manifestations of love and families may not be typical but they are as real as their traditional counterparts and such atypical manifestations of the family unit are equally deserving not only of protection under the law but also of the benefits available under social welfare legislation.

“The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination,” said the top court.