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Queer couples, unmarried partners also entitled to social welfare benefits: SC
Not being confined by the traditional concept of a “family” -- both in law and society in these changing times -- the court noted, that a “family” conventionally consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children.
Same-sex couples or unmarried partners are entitled not only to the protection of law but also to the benefits available under social welfare legislation, the Supreme Court has held, emphasising that the letters of the law cannot be used to put non-traditional families in a perilous position.
In India, same-sex marriages are neither registered under matrimonial laws nor are such couples allowed to access social welfare benefits as a unit of family -- four years after a Supreme Court ruling decriminalised gay sex between consenting adults in 2018.
In a judgment that makes significant observations on inclusivity and an expansive definition of traditional family units, a bench headed by justice Dhananjaya Y Chandrachud, underscored that familial relationships may also take the form of “domestic, unmarried partnerships, or queer relationships”.
Not being confined by the traditional concept of a “family” -- both in law and society in these changing times -- the court noted, that a “family” conventionally 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,” said the bench, which also included justice AS Bopanna.
According to the court, a household, in current times, may very much consist of a single parent, and 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,” stressed the bench.
It added: “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.”
The court order came on a case that revolved around maternity leave benefits for a woman who had adopted her husband’s children from a prior marriage, and then conceived a child of her own. Working as a nursing officer at Chandigarh’s Post-Graduate Institute of Medical Education and Research (PGIMER), she applied for a maternity leave in June 2019 but was denied the benefit on the ground that the rules provided clearly that the maternity leave can be granted only if she has less than two surviving children. The rules provide for 18-day maternity leave with full salary. She went to the Central Administrative Tribunal and the Punjab and Haryana high court but lost at both fora.
The Supreme Court rejected PGIMER’s contention that since she availed the benefit of child care leave in respect of the two children born to her husband from his first marriage, she was not entitled to maternity leave in respect of the birth of her own biological child.
Setting aside the previous order, the top court declared that the grant of child care leave with respect to her step-children would not impinge upon her entitlement to avail maternity leave for her sole biological child.
Favouring a purposive interpretation of the legislative mandate, the court said that the pertinent regulation for maternity leave must be interpreted to facilitate continuance of women’s employment and not otherwise.
“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,” it stressed.
For the purpose of adopting an approach which furthers legislative policy, the bench lent credence to the provisions of the 1961 Maternity Benefit Act that prescribes a cognate law to ensure that the absence of a woman from her place of work due to maternity or for child care does not hinder her entitlement to receive wages for that period.
“The Act of 1961 was enacted to secure women’s right to pregnancy and maternity leave and to afford women with as much flexibility as possible to live an autonomous life, both as a mother and as a worker, if they so desire...The right to reproduction and child rearing has been recognized as an important facet of a person’s right to privacy, dignity and bodily integrity under Article 21,” noted the court, further referring to various international conventions on motherhood and safeguarding women’s health that India has ratified.
Before the Delhi high court, the Union government has opposed a plea seeking recognition of same-sex marriage. Through an affidavit in February last year, the Centre maintained that a marriage in India can be recognised only if it is between a “biological man” and a “biological woman” capable of producing children, as it strongly opposed the validation of same-sex marital unions. The matter is currently pending before the high court and will be heard next in December.
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