Our concept of a family should embrace liberty
2 min read . Updated: 01 Sep 2022, 10:12 PM IST
PremiumThe Supreme Court has done well by offering India an inclusive definition of a family unit. We must go beyond old norms to assure everyone their basic right to look after loved ones
What makes a family? Who belongs to it? Simple questions, one may think. But for the non-conformists of society, 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 outlaws their relationship. Think of inter-caste couples who paid with their lives because their families saw murder as a means to uphold dubious notions of ‘honour’. Think of trans-people who find support, friendship and the space to be who they are, free of violence and stigma, only once they leave the traditional fold of their family. The inherent conservatism in society, culture and law tends to hold up the normative family—father, mother, children (add grandchildren and relatives who form kinship networks)—as the only such unit worthy of recognition, ever ready to discourage any deviations. But, as our Supreme Court observed this week, this assumption goes against the lived realities of people and ignores the fact that “many families do not conform" to this patriarchal norm.
The remarks of India’s top court, in a dispute over maternity benefits, make a powerful intervention. They expand the idea of the ‘family’ beyond the narrow heterosexual nuclear unit. The case involved a nurse in a government hospital who was denied maternity leave because she had taken time off earlier to care for her husband’s children from a previous marriage. The court rejected the argument that her “atypical" family doesn’t qualify for what others are accorded under the law. “Familial relationships may take the form of domestic, unmarried partnerships or queer relationships," it said. “These manifestations of love and families may not be typical but they are as real as their traditional counterparts… equally deserving not only of protection under the law but also of the benefits available under social welfare legislation." In doing so, the court lived up to its record as an institution that has often wielded the Constitution to expand our freedoms and ease clamps on the personal lives of citizens. The biggest signpost of this welcome approach was its 2018 decision to strike down a colonial-era law that criminalized same-sex relationships.
In the long struggle to bend social conservatism towards greater freedom, the Supreme Court’s redefinition of a family can prove to be a vital ally. This becomes clear when we think of how the state continues to back antiquated ideas of ‘family’, even though social values and the law have moved on to embrace individual liberty. For instance, the Centre has steadfastly 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 queer couples (or even single men), by denying them the right to raise children through adoption or surrogacy. All these restrictions stifle the fundamental rights granted to all by the Constitution. For same-sex partners, the lack of marriage recognition makes it hard to take care of loved ones in elementary ways—say, by buying a family health insurance cover, opening a joint bank account or having one’s property automatically inherited by a partner. The court’s observations land a blow for the rights of all kinds of families in all their splendid variety. It resists the majoritarian consensus that denies the essential joys of life to those who go against the grain. We must walk on the path it has opened up.
