India’s Supreme Court widens definition of ‘family’

Nonetheless, the ruling was hailed as a milestone in the march towards equality for women and the LGBTQ community in a country where family issues – including custody of children – often pit unmarried parents against extended families in lengthy legal battles in family court.


For example, while Indian law stipulates that in most cases, custody of young children should be given to mothers, families have — and often exercise — the right to argue that the child is better off with the father, in the context of a traditional Indian joint family, in which several generations live under one roof.

In other cases, family courts have awarded custody to grandparents or other relatives because a child’s mother works outside the home.

“We welcome this ruling because it moves from the heterosexual ideas of the family and home that have been the bedrock of patriarchy for so long, especially for poor people,” said Anuradha Banerji, an activist with Saheli, a women’s rights organisation. “This will help people not succumb to marriage because marriage was the only legally understood definition of family. So this is, I think, a very welcome change in the definition of the family.”


Some women’s rights lawyers in India have criticised family courts as being overly focused on preserving the institutions of marriage and traditional nuclear families, rather than negotiating individual rights.

Yet in the past decade, the Supreme Court has steadily chipped away at more conservative views of gender and sexuality, women in the workplace and now, family.

That court, the ultimate legal authority in India, consists of a chief justice and dozens of judges who form benches to consider constitutional matters. Appointed by the country president, they are subject to the country’s mandatory retirement age of 65. In recent years, the court has increasingly pushed back against India’s societal norms on gender and sexuality, in an apparent nod to the fact that many Indians themselves are rejecting those norms.

In a landmark ruling in 2014, the court recognised transgender people as a third gender deserving equal access to legal protections and social welfare benefits.

The court decriminalised homosexuality in 2018, overturning one of the world’s oldest bans on consensual gay sex.

In September, it opened the door for women to pursue military careers at the highest levels, and in May, it ordered the police to respect the right for women to engage in prostitution.

Since the groundbreaking ruling on homosexuality, activists have been petitioning courts to legalise gay marriage, and to extend the benefits of marriage to same-sex domestic partnerships, as well as to allow same-sex couples to foster and adopt children.

That effort has bumped up against a complex approach to accommodating India’s religious diversity.

In India, marriage is governed by a set of religious, personal laws, which date to the colonial era and vary among faiths, and by a secular law called the Special Marriage Act. Both define marriage as a union of a man and a woman.

An Indian Hindu family crosses the shallow banks of the Yamuna river during Chhath Puja festival in New Delhi, India. During Chhath, an ancient Hindu festival, rituals are performed to thank the sun god for sustaining life on earth.

An Indian Hindu family crosses the shallow banks of the Yamuna river during Chhath Puja festival in New Delhi, India. During Chhath, an ancient Hindu festival, rituals are performed to thank the sun god for sustaining life on earth.Credit:AP

Legalising same-sex marriage would require an overhaul of India’s legal system, the government of India has said.

In a Delhi High Court case last year, the government staunchly opposed such a change, arguing that it would cause “complete havoc with the delicate balance of personal laws in the country.”

The Supreme Court ruling announced this week gives the petitioners in the Delhi High Court case grounds for trying their case again, legal experts said.

Unlike the 2018 ruling, public reaction to this month’s judgment expanding the definition of family was subdued, although its implications could be as far-reaching, experts said.

The judgment does not specifically address parents who have children by surrogacy, adoption or assisted reproductive technologies. Similar cases may need to be decided to clarify the extent of rights of non-traditional families in a country where social realities are changing far faster than the law, said Ranjana Kumari, the director of the Centre for Social Research in New Delhi.

“Science is changing, technology is changing. People’s relationships are changing,” Kumari said. “The whole society is undergoing social transformations. In the context of family, it needs to be recognised.”

This article originally appeared in The New York Times.

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