Familial Relationships May Take Form Of Domestic, Unmarried Partnerships Or Queer Relationship: Supreme Court

The Supreme court has declared that familial relationships may take the form of domestic, unmarried partnerships or queer relationships. In law and society, the predominant understanding of a “family” concept is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children.

This type of assumption ignores both the law and society and also marks 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. Justices DY Chandrachud and AS Bopanna said in an order that  “Familial relationships may take the form of domestic, unmarried partnerships or queer relationships.”

In 2018 after the apex court decriminalised homosexuality activists raised the issue of recognising LGBT marriages and civil unions as well as allowing live-in couples. The apex court made the remarks in its verdict that held that a working woman could not 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 bench has also included that a household may be a single-parent household because of several reasons, which may include the death of a spouse, separation, or divorce. Similarly, it also stated that the guardians and caretakers of a particular child “may change it with remarriage, adoption, or fostering”.

Further, it also mentioned 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.”

Regarding the law and order, Justice Chandrachaud also mentioned that “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.” He further added, “The object and intent of the grant of maternity leave would simply be defeated”, until the purposive interpretation were to be adopted in the present case, said the bench.

Further, it also said that “Under the rules of 1972 the grant of maternity leave intended to facilitate the continuance of women in the workplace. It is a harsh reality for such provisions that many women would compel by social circumstances to give up on her work which she is doing on the birth of a child if they are not granted leave and other facilitative measures”.

Adding to the statement it also included that, “no employer can perceive childbirth as detracting from the purpose of employment and childbirth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective”. In the meantime, it also said that the facts of the present case indicate that the spouse of the appellant had a prior marriage that had ended as a result of the death of his wife after which she married him.

It also mentioned in the rules that “Although certain provisions of the Rules of 1972 have enabled women to enter the paid workforce, women continue to bear the primary responsibility for child care. The grant of child care leave to the appellant cannot be used to disentitle her to maternity leave under Rule 43 of the Rules of 1972.”

The top court also said that the facts of the present case, too, indicate that the structure of the appellant’s family changed when she took on a parental role with respect to her spouse’s biological children from his previous marriage.

Credits: PTI

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by Shyma