'Unmarried Partnerships & Queer Relationships Are Real Family Units,' Observes SC

The Supreme Court on Sunday said that a family can take the form of an unmarried partnership or a queer relationship. The SC bench made this observation on August 28, and noted that an ‘atypical’ manifestation of a family unit is as real as its traditional counterparts. It further stressed on such families to receive protection under the law.

It is generally assumed that a traditional family in India consists of a mother and father running the household and providing for their kids. It used to be the ‘normal’ family picture that existed in everyone’s heads. However, with this new observation, we expect the circle of ‘normal’ to widen.

The bench comprised Justices DY Chandrachud and AS Bopanna. Their observation is a step in the direction of acceptance of homosexuality and the existence of families out of wedlock.

The Case

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The bench was hearing a case of a mother who was denied maternity leave for her biological child. The leave was denied based on the fact that she had taken leave previously to take care of one of her husband’s two biological children (from a previous marriage).

It further said, “The grant of maternity leave under Rules of 1972 is intended to facilitate the continuance of women in the workplace. It is a harsh reality that for such provisions, many women would be compelled by social circumstances to give up work on the birth of a child if they are not granted leave and other facilitative measures"

The justices said that the matter of granting leave for the biological kids of her husband can be taken under a compassionate view. They also observed that a family may be run by a single parent because of separation, death of a spouse or divorce. However, these dynamics are as real as traditional families.

‘Law Must Not Be Relied Upon To Disadvantage Atypical Families’

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The bench said that guardians and caretakers of children might change with adoption, remarriage, and fostering. It observed that the manifestation of these families might be atypical, but they are real. These deserve equal protection under the law.

Justice Chandrachud penned down the verdict that read, “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.”

After taking all shreds of evidence into account, justices said that the dynamic of the family changed after the marriage of the couple. With it, the woman took the parental role for her husband’s kids. However, it does not deny her the right to avail maternity leave for her sole biological child.

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‘Unmarried & Queer Couples Too Constitute Real Families’

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Speaking of the traditional families where a heterosexual couple takes care of their kids, justices found the definition of the family excluded many other atypical families.

They said, “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. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships."

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The observation was also significant because activists have been raising issues of recognising LGBTQ+ (LGBTQIA+ Glossary) marriages as legal. Since the apex court decriminalised homosexuality in 2018, these activists and the queer community have been fighting for the legal status of marriages in the country.