United Nations’ Universal Declaration of Human Rights Article 16 states that “men and women of full age… have the right to marry and to found a family.”
Whenever we hear the term family, the instant image which minds think of is a unit comprising of a mother, father, and children. It is odd how not all Indians are able to start a family in a country like India where the family is viewed as the core of the world. This narrow definition tends to limit and undermines the experiences of the “atypical family units”. But, now, with the abolition of Article 377 and the recognition given to trans-genders, the LGBTQ+ community, it has become important to widen the horizon and think differently. Not only this, it is now time that we take into consideration separations, second marriages, adoptions, etc. In India, people still are not very open to these atypical family units but the fact that the Supreme Court went ahead and used a progressive approach can be seen as an attempt to normalize these situations and make people more welcoming and open-minded.
Recently, a Supreme Court ruling showed this progressive approach. In the present case, Deepika Singh v. Central Administrative Tribunal and Others, the court was presented with a question that required to break this ongoing convention about a “family” or rather, typical family. The Supreme Court held that it’s high time now that we recognize atypical families as real as traditional families. In recognizing the present case, the court took a purposive interpretation. The main purpose of the law is to empower people and it should be the court’s responsibility to form a liberal explanation so as to serve the purpose of the law. If the court restricts the rigid explanation, then it is possible that the purpose with which the lawmakers made the law would not be fulfilled. In the case of KH Nazar v. Mathew K Jacob, the court rightly notices that beneficial legislation with a purpose-oriented approach should be taken. The case was about whether a rocky land should be kept under ‘commercial site’ or not under Kerala Land Reforms Act, 1963, and the bench unanimously gave the ratio decidendi that the beneficial legislation should be read in a wider context and should progress with the society.
“But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes the change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too.”
In the case of Deepika Singh v. Central Administrative Tribunal, Chandigarh & Ors. the woman had second marriage with a man who already had two surviving children. She registered them as her children and while she was having her first biological child, she demanded maternity leave which she was denied because according to Rule 43 of the Central Civil Services (Leave) Rules 1972, any woman having two or more surviving children is not allowed to have maternity leave. The SC held that if we go with the rigid interpretation; we will destroy the purpose of law and will not do justice hence they took the purposive interpretation so as to give a purpose to the law.
“This assumption ignores both, the many circumstances which may lead to a change in one’s familial structure, and 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.” (Paragraph 26)
In Surendra Kumar Verma v. Central Govt. Industrial Tribunal-cum-Labour Court, the courts held that welfare statutes should be looked at with a wider and more progressive approach so as to fulfil the intent of the law. In Badshah v. Urmila Badshah Godse, the court highlighted the principle of purposive interpretation so as to lead to social justice.
“Therefore, it becomes the bounden duty of the courts to advance the cause of social justice. While giving an interpretation to a particular provision, the court is supposed to bridge the gap between the law and society.”
The ruling constructed it plentifully evident that the appellant’s partner’s right to take maternity leaves for her only biological baby could not be affected by the situation that the appellant has two biological kids from his previous marital relationship.
In today’s epoch, it is more than evident that the time has come when all the definitions of family are treated at par or equally as enshrined in our Constitution’s Right to Equality. Only when equal treatment is given to everyone, the law will solve its purpose and have a purposeful end. All the atypical units should be given equal protection of acts as well as all the advantages and aid and assistance covered by any social welfare legislation. In a society progressing so fast, if we don’t make changes in conventional thinking then all the new developments and legislations would not be of much use. As rightly held in Stephen’s college v. university of Delhiunder, “Equal protection of the laws is now being read as a positive Obligation on the state to ensure equal protection of laws by bringing in necessary social and economic changes so that everyone may enjoy equal protection of the laws and nobody is denied such protection.”
The Supreme Court’s action of widening the definition and taking a progressive approach can be seen as a ray of hope to many people. Furthering this approach in other cases as well will lead to the court being a torchbearer and being the highest judicial institution, every citizen and person looks up to it. Widening the scope of such laws will lead to the end of discrimination and a feeling to the community will be achieved as the non-conventional families will be more recognised and better respected in society. There are many instances where such atypical families are not recognised at all in society because of the narrow mind-set of the people and now, with this judgement, these families will be taken as legitimate and respected. Also, single parents often face a tough time with society accepting them. Separations, widowers, etc. are very often seen as inferior or less respectful members of this society. In this way, this judgment can be seen as empowering people and crying out the idea that no one is different or abnormal.
In India, it is a common notation that a woman or a man is supposed to adjust with each other as divorce is seen as a taboo. Thus, they all have equal rights and equal integrity and should function in this society without any fear, and Article 14 and Article 21 very well resonate with this idea. In conclusion, it is a positive step toward a better and more equal society and the SC should incorporate this approach wherever it is required or it deems fit.
Author(s) Name: Aanvee Aggrwal (National Law University, Odisha)