Laws must not be used to disadvantage 'non-traditional' families: SC

The Supreme Court has recently declared that an "atypical" family unit is equally deserving of protection and benefits under the law as its traditional family counterpart. The atypical family can take any form, from domestic, unmarried partnerships to queer relationships.

The traditional family implies a 'single, unchanging unit' with a parental unit fulfilled by a mother and father and their children.

The apex court bench further said, “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.”


But as this observation becomes more significant, as activists continue to demand the legalization of LGBTQ marriage, alongside the right of live-in couples to adopt children.

The Supreme Court's remark came soon after its order that claims that working women cannot be denied her statutory right to avail maternity leave to take care of her biological child even if her husband has other children from his previous marriage and she had to take leave to take care of them.

The court had said that a household may be a single-parent one for a variety of reasons, such as separation, divorce, or death of a spouse.

"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," the bench said.

It added that the law must not be used 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," Justice Chandrachud said in the court judgment.

"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 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," the judgment further stated.

The Supreme Court also stated that no employer can perceive childbirth as detracting from employment. The former has to be considered a natural incident of life in the context of employment. Hence, the court said, the provisions of maternity leave must be construed as per that perspective.

It also said that gendered roles assigned to women and societal expectations meant that women were always pressured to take on a disproportionate burden of childcare.

The bench referred to a survey conducted by the Organisation for Economic Co-operation and Development (OECD), stating that women in India spend up to 352 minutes everyday on unpaid work (including childcare) – which is 577 percent higher than the time spent by men for the same.

"The support of care work through benefits such as maternity leave, paternity leave, or child care leave (availed by both parents) by the state and other employers' is essential," the court noted.