Chipping away at conservative notions of ‘family’

A Supreme Court bench comprising Justices D Y Chandrachud and A S Bopanna was recently confronted with whether a Central Government employee, who had previously availed child care leave for the care of her non-biological children (husband’s children from his earlier marriage), was entitled to maternity leave for her sole biological child. In its judgement granting maternity leave, the court noted that the fact that her husband had two biological children from his previous marriage did not have any bearing on her entitlement to avail maternity leave for her lone biological child.

The court added that women are always nudged to shoulder a disproportionate burden of childcare responsibilities owing to societal expectations and gendered roles allotted. Relying on a survey by the Organisation for Economic Co-operation and Development, the bench stated that Indian women spend up to 352 minutes per day on unpaid work, 577% more than the time spent by men, where the time spent on unpaid work includes childcare. Consequently, the court stressed that no employer can treat childbirth as detracting from work, and childbirth must be perceived as a natural incident of life in the context of employment.

The court opined that in the eyes of law and society, the predominant understanding of the notion of a ‘family’ is that it comprises a “single, unchanging unit with a mother and a father (who remain constant over time) and their children”. This assumption was found to neglect the varied circumstances that can result in a change in a person’s familial structure and the fact that several families do not fit within this expectation to begin with.

The bench additionally observed that families can also assume the shape of domestic unmarried partnerships, queer relationships, and single-parent households, and that such families, like their traditional counterparts, are equally deserving of not only protection under law but also of the benefits available under social welfare legislation.

The bench further underscored that law ought not to disadvantage families which are dissimilar to traditional ones and women who assume motherhood in ways different from the popular imagination. This is of immense significance, especially for women who opt for adoption or fostering, assisted reproduction technologies or surrogacy. Likewise, extending and broadening the idea of an Indian family unit is a welcome move.

By granting maternity leave to a woman belonging to a family that clashes with the conventional image of a family, the court has amply appreciated the diversity of modern familial relationships. With the shift from joint families towards the rapid emergence of nuclear families, the definition of a family unit has morphed in the past, and will constantly undergo transformation in the years to come.

The dynamics of family structure are fluid and family, as a social institution, is constantly subject to fluctuations and mutations. For this reason, what a ‘family’ means and composes cannot be set in stone. Acknowledging that the components of a family unit need not conform to the popular expectations of a family and doing away with the ‘one size fits all’ approach is a momentous step in itself.

At this juncture, it is pertinent to note that every judgement contains two parts, obiter dictum and ratio decidendi. While obiter dictum refers to passing observations, opinions or remarks which do not carry binding value for subsequent benches, ratio decidendi is the operative portion of the judgement which conclusively settles the questions of law under consideration before the court and has binding force. Since the matter of contention in the present case was in relation to a woman’s entitlement for maternity leave, the bench’s observations on a widened definition of traditional family units appear to form the obiter part of the judgement.

Nonetheless, these tangential observations are noteworthy, especially in the backdrop of the Centre opposing a clutch of petitions filed before the Delhi High Court praying for recognition of same sex marriages in India under the Hindu Marriage Act, Special Marriage Act, and Foreign Marriage Act, among other statutes.

In its affidavit, the Union Government stated in February last year that “living together as partners and having sexual relationship by same sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two.”

The Supreme Court’s recent reflection that a ‘father, mother and child’ are not the prerequisites to constitute a family is all the more salient and pivotal in this milieu. While the apex court’s observations undoubtedly stretches the traditional understanding of what ‘familial relationships’ necessarily constitute, it remains to be seen whether these observations materially translate into actionable steps towards inclusivity.

(The writer is a lawyer)