What makes a family? Who comes under this? Simple question, one might think. But for society’s non-conformists, finding the power to answer these on their own terms can take years of struggle. Think of a gay couple trying to live together in a country that makes their relationship illegal. Think of interracial couples who paid for their lives because their families saw murder as a means of perpetuating a dubious notion of ‘honour’. Think of trans-people who find support, friendship, and space for who they are, free of violence and stigma, only once they leave the traditional fold of their family. Conservatism enshrined in society, culture and law tends to uphold the standard family—father, mother, children (grandchildren and relatives who make up the kinship network)—as the only entity worthy of recognition, which is free from any deviation. Always ready to discourage. But, as our Supreme Court observed this week, this notion goes against the living realities of people and ignores the fact that “many families do not conform to this patriarchal norm”.
India’s top court’s remarks make a powerful intervention in the maternity benefit dispute. They expand the idea of ’family’ beyond the narrow heterozygous nuclear unit. The case involved a nurse in a government hospital who was denied maternity leave because she had taken time off to look after her husband’s children from a previous marriage. The court rejected the argument that his “abnormal” family did not qualify for others under the law. “Family ties may take the form of domestic, unmarried partnerships or promiscuous relationships,” it said. “These expressions of love and families may not be as specific, but they are as real as their traditional counterparts … worthy of not only protection under the law but also of the benefits available under the social welfare law.” In doing so, the court lived up to its record as an institution that has often used the Constitution to expand our freedoms and ease the clamp on citizens’ private lives. The biggest sign of this welcome approach was a 2018 decision to dismantle a colonial-era law that criminalized same-sex relationships.
In the long struggle to turn social conservatism towards greater freedom, the Supreme Court’s redefinition of a family may prove to be an important ally. This becomes clear when we consider how the state continues to support the old idea of ’family’, even as social values and laws have moved to embrace individual liberty. For example, the Center has strongly opposed a petition seeking registration of same-sex unions under the Hindu Marriage Act of 1955, arguing that “our values” are opposed to it. Recently passed laws continue to discriminate against gay couples (or even single men). ), by depriving them of the right to have children through adoption or surrogacy. All these restrictions violate the fundamental rights given to everyone by the constitution. For same-sex partners, a lack of recognition of marriage makes it difficult to care for loved ones in the primary way—say, buying a family health insurance cover, opening a joint bank account, or automatically inheriting one’s property from one partner. has been found. The court’s comments are a blow to the rights of all types of families in all their glorious diversity. It opposes the majority consensus that deprives those who go against the grain of the essential joys of life. We must follow the path he has opened.
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