‘Atypical’ and queer relationships are same as traditional families, India’s Supreme Court rules

A group of transgender women attend an inauguration ceremony of a free dance school for transgender people in Chennai on 31 May 2022 (AFP via Getty Images)
A group of transgender women attend an inauguration ceremony of a free dance school for transgender people in Chennai on 31 May 2022 (AFP via Getty Images)

A family need not necessarily comprise of a traditional husband and wife pairing but can also be constituted through an unmarried partnership or a queer relationship, India’s top court said in a recent judgement.

The Supreme Court’s ruling on Sunday expanded the country’s view of what is traditionally perceived to be a family, paving the way for LGBT+ couples to adopt children.

“Familial relationships may take the form of domestic, unmarried partnerships or queer relationships,” a Supreme Court bench said, according to Indian media outlets.

It also noted that an ”atypical” manifestation of a family unit is as real as its traditional counterpart and deserves protection under the law.

While Indian law has so far maintained a rather traditional definition of a family comprising of gender-based roles for mothers and fathers, the judgement significantly expands the purview within which a family is supposed to be looked at.

Reading out their observations, the bench headed by two judges of the top court said current gender-based assumptions ignored “many circumstances” of makes a family, including those that do not conform to this expectation.

“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,” said the bench of Justices DY Chandrachud and AS Bopanna.

The remarks came as part of a judgement that held that a working woman cannot be denied her statutory right to maternity leave for her biological child because her husband had two children from a previous marriage. The woman in question had availed leave to take care of one of them, said several reports.

The bench said a household may be a single-parent household as well, 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,” it said.

The observation is being widely celebrated as a step towards recognising the rights of same-sex couples and unmarried people living together who want to adopt a child.

Until now, the law had allowed only straight couples to be viewed as families in legal terms to be eligible for adoption.

India had decriminalised homosexuality in 2018 in a landmark judgement that ruled the controversial colonial-era Section 377 of Indian law was unconstitutional. However, homosexuality still remains taboo in several parts of the country.

The traditional rules of what constitutes a family are also being challenged in India as calls grow to allow members of the LGBT+ community and live-in partners to be given the same set of protections and rights under law as straight couples.