By Amisha Singh
This article looks at the recent Supreme Court judgment in the case of Deepika Singh v Central
Administrative Tribunal & Ors. The ruling broadened the definition of family to include atypical families and guaranteed them the same rights as conventional heteronormative ones.
Indian society has historically viewed and recognised families as heteronormative units. In the absence of a defined meaning of family, the most conventionally accepted definition is a unit comprising a husband, wife, children and other relatives. Given the restrictive nature of this definition, same-sex and transgender couples (married and unmarried) and unwed mothers are denied the familial status that should be rightfully accorded to them. ‘Family’ has unfortunately been understood as comprising your blood relatives and relatives through marriage. Besides being prima facie heteronormative, conventional families are extremely patriarchal. Nivedita Menon in her book Seeing like a feminist, succinctly writes, “because the family, as it exists, is based on clearly-established hierarchies of gender and age, with gender trumping age; an adult male is generally more powerful than an older female.” In the wake of such parochial definitions of family, the members of the LGBTQIA+ community have faced ostracization not just by society but by the law as well.
The close relationship between the institution of marriage and family has negatively impacted women, who are often looked down upon for not marrying “at the suitable age”. Furthermore, they are expected to sacrifice their careers and ambitions by placing marriage and family as the foremost priority. The enactment of the Protection of Women against Domestic Violence Act 2005 has fortunately recognised unmarried couples and thus provides women in such relationships the rights that may be availed by married women, in certain cases. However, this act like most other Indian laws recognises only heterosexual couples. In the Indian socio-cultural context, the institutions of heteronormative marriages and families have been given significantly higher precedence over the rights of women and members of the LGBTQIA+ community. The state sanctions these categorizations of a family by failing to recognise families outside the fold of patriarchy, monogamy and heteronormativity within the Indian legal framework.
The judgement delivered in the case of the National Legal Services Authority (NALSA) v Union of India (2014) was a welcome decision as it laid the foundation for the actualisation of the rights of transgender persons within the framework of the constitution. Following suit, the Navtej Singh Johar v Union of India (2017) case led to the decriminalization of same-sex relationships by the reading down of Section 377 of the Indian Penal Code. The progressive ideas laid down by the Supreme Court in both these cases were short-lived since the legislature passed The Transgender Persons (Protection of Rights) Act, and the Surrogacy Regulation Act, in 2020 and 2021, respectively. This yet again enforced the idea of family as being a patriarchal, heterosexual and casteist institution and thereby failing to recognise “chosen families” and intimacies that coexisted in India. These acts are in direct contravention of the precedents laid down by the Supreme Court in the aforementioned cases and can be regarded as going beyond the powers of the Constitution, i.e., ultra vires of the Constitution. On one hand, there exists a section of society, which wishes to adopt modern and progressive ideas that ensure the co-existence of chosen and atypical families alongside ‘conventional families’; on the other hand, there exist orthodox factions which continually oppose such reform since it would ‘corrupt’ the traditional and archaic idea of a heteronormative family. The orthodox sections view such ideas and reforms as antithetical to Indian culture and tradition.
The idea of chosen families can be easily read into the constitution through the fundamental rights which guarantee the rights to liberty, equality and freedom. Individuals should be free to choose their own families, especially those groups that are vulnerable to abuse within normative families and those that are discriminated against by the public at large. The protection of the institution of family and marriage has unfortunately always come at the cost of minorities (based on gender, religion and sex). The rights of women, children and members of the LGBTQIA+ need to be protected but that requires us to foremostly address the dichotomy between tradition and culture and modern, progressive notions of equality and freedom. Despite the setting of precedents by the Supreme Court, minorities still face obstacles in exercising their rights as equal citizens and are often treated as second-rate citizens in comparison to the heterosexual male gentry.
In the recent case of Deepika Singh v Central Administrative Tribunal & Ors., the Supreme Court’s
division bench granted relief to the appellant by holding that she cannot be denied maternity leave
because she had previously availed childcare leave for her husband’s biological children. The underlying premises and observations of this succinct judgement were far-reaching since they are reflective of a progressive stance on the socio-legal understanding of parental care and the traditional understanding of the ‘family unit’. Society and law conventionally recognise the family as consisting of a single, unchanging unit with a mother, a father and their children; however, Justice D.Y. Chandrachud notes that “this assumption ignores the fact that many families do not conform to this expectation.” Families could be defined through various configurations, the role of adults being primary caretakers of either biological or non-biological children. The judges take into account single parents, unmarried partnerships and queer relationships within the ambit of atypical families. Furthermore, Justice Chandrachud evocatively notes that not all families and manifestations of love are typical, some are atypical but as real as their traditional counterparts and these atypical manifestations of families must be treated equally and given protection under law and benefits of social welfare legislation must be made accessible to them. The law needs to be modified with the changing times to accommodate the atypical families and relationships, especially concerning women who perform the role of mothers that are beyond the scope of ordinary imagination
and acceptance. With the decriminalisation of homosexuality in 2018 and legal rights being awarded to same-sex couples in certain states, it is time that the definition of family is revised to include and reflect modern realities.
The precedent set in this case by the Supreme Court is binding on all Indian courts in accordance with Articles 141 and 142 of the Constitution. However, the enforcement ability of the court is limited, as a result of which this ruling may not necessarily translate in the real world, especially among the conservative sections of society where family matters are settled outside of court. Notwithstanding the above, in the present context, single parents, unmarried partners and queer couples are recognised by the law as equals of traditional families and are guaranteed rights, which can be enforced by the court in case of a breach. This is an extremely progressive ruling that has taken us closer to achieving equality in its true essence and in guaranteeing everyone the right to choose their family and partner. The atypical families now have the option of judicial recourse, a breakthrough in assuring members of the LGBTQIA+, unmarried parents and single mothers get the rights and privileges they deserve.
Amisha Singh is a first-year LLB student at Jindal Global Law School. Having pursued an
undergraduate degree in Politics, Philosophy and Economics (PPE), her research interests lie at the confluence of these subjects.