Family May Take Form Of Unmarried Or Queer Relationships, Atypical Families Also Entitled To Protection Of Law : Supreme Court

In a recent order, the Supreme Court has made certain significant observations which expand the traditional meaning of family. "Familial relationships may take the form of domestic, unmarried partnerships or queer relationships", the Court observed, while holding that atypical family units are also entitled to the equal protection of law.A bench comprising Justices DY Chandrachud and AS Bopanna made these observations in a judgment delivered on August 16(but which was uploaded a few days ago), while granting the relief of maternity leave to a Central Government employee regardless of the fact that she had availed child care leave for the children of her husband from his earlier marriage.The judgment authored by Justice Chandrachud made certain notable observations regarding "atypical" family units which are also entitled to equal protection of law as under :"The predominant understanding of the concept of a "family" both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. 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. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the "mother" and the "father") of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation".The judgment further noted : "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".These observations - although they are obiter - are significant, particularly in relation to queer relationships, as the LGBTQ community has been raising the issue of legal recognition for same sex marriages, especially after the decriminalisation of consensual homosexuality in 2018.The judgment,with its observation that the law must not disadvantage women who take on the role of motherhood in ways different from the popular imagination, also opens the doors for legal rights for women who avail surrogacy, adoption or assisted reproductive technologies Purposive interpretation needed for Central Civil Service RulesThe issue in the present case arose as Rule 43(1) of the Central Civil Service Rules restrict maternity leave only with respect to two surviving children. In this case, the woman's husband had two children from his previous marriage and she had previously availed child care leave for her non-biological child. When a child was born to her in the marriage, the authorities denied her maternity leave, citing the bar under Rule 43.The Apex Court held that Rule 43 of the Central Civil Services (Leave Rules) 1972 has to be given a purposive interpretation in terms of the Maternity Benefit Act and Article 15 of the Constitution of India, under which the State is to adopt beneficial provisions for protecting the interest of women."Unless a purposive interpretation were to be adopted in the present case, the object and intent of the grant of maternity leave would simply be defeated. 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 but 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. No employer can perceive child birth as detracting from the purpose of employment. Child birth 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", the Court observed.Women forced to take disproportionate burden of child care workThe Court noted that gendered roles assigned to women and societal expectations mean that women are always pressed upon to take a disproportionate burden of childcare work. Citing a survey by the Organisation for Economic Co-operation and Development (OECD), the Court said that women in India currently spend upto 352 minutes per day on unpaid work, 577% more than the time spent by men.Time spent in unpaid work includes childcare. In this context, the support of care work through benefits such as maternity leave, paternity leave, or child care leave...

Family May Take Form Of Unmarried Or Queer Relationships, Atypical Families Also Entitled To Protection Of Law : Supreme Court

LIVELAW NEWS NETWORK

Tags