Rethinking families: Reflections on the same-sex marriage case in India

by | Jun 22, 2023

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About Devina Malaviya and Shreiya Maheshwari

Devina Malaviya is Assistant Professor of Legal Practice at OP Jindal Global University and Shreiya Maheshwari is a Delhi based advocate and researcher.

The arguments in the case seeking legal recognition of same-sex marriage in India concluded last month and the matter is currently pending the judgment of the Supreme Court. The petitioners have sought the right to equal access to the institution of marriage and the various rights it confers, such as the ability to adopt children jointly, to own property together and to make medical decisions for one another, among others. The arguments have raised various issues of constitutional importance and it is likely that the judgement will have a far-reaching impact on anti-discrimination jurisprudence in India. The claims of the petitioners which are grounded in provisions such as Article 14 (equal protection of laws), Article 15 (non-discrimination) and Article 21 (right to life and personal liberty) have been opposed by the Union of India. The Union has argued, inter alia, that “Statutory recognition of marriage limited to marriage/union/relation as being heterosexual in nature, is the norm throughout history and are foundational to both the existence and continuance of the State.” It has also argued that given the social value of heteronormative marriages, “there is a compelling and legitimate State interest” in conferring legitimacy only on these unions.

It is important to note that the general understanding of family has been typically tied to marriage and its outcomes. For a long time, the conception of this marital unit was a heterosexual one. However, gradually, the understanding of families and their structure has undergone a change.

In this piece, we argue that the State’s understanding of only heterosexual marital units as the ideal and its use of the law to preserve these units is misguided. Apart from the right to constitutional recognition that same sex unions undoubtedly must be conferred, we argue that the State’s opposition to a more expanded definition of marriage is based on a flawed understanding of what the role of law should be vis à vis family. Rather than mandating that only certain units are deserving of being recognised as marital unions, the focus of the State should be on how its policies and laws can be used to support families and its individual members. In this context, we focus on role of family in providing care and the value of such caregiving.

At the outset, it is important to clarify that we are not arguing that the form of relationships is completely irrelevant. We acknowledge that different relationships such as marriage, conjugal cohabitation and non-conjugal units may require different treatment in law due to the differences in the nature of those relationships. Further, people may choose one or other form based on various factors. What we are arguing is that the focus of the Indian State should not be on preserving a single form of relationship which it considers ideal and gatekeeping who is allowed to choose that relationship.

Within society, families have always performed essential functions. The role of providing care and support is typically allocated to the family unit. Martha Fineman notes that the responsibility for dependents is central to the familial set-up and that the State is the institution which will intervene only if families fail, and even then with “minimal, grudging assistance”. The care work within families includes a wide gamut of activities including providing support for dependent members of the household, such as children and the elderly, as well as providing emotional and material support to non-dependent adults who also require care to lead a dignified life. Given the immense value of caregiving as a function undertaken by families, it is important the law acknowledges and supports this function. While such caregiving is of significant worth in the development of human beings, it also imposes a burden on the caregiver. Presently, the Indian State has done very little to recognise the value of caregiving within families and to provide support to caregivers, which could  be in the form of laws and social policies that promote and aid relationships of care. It must also be recognised that as heterosexual families are predominant in India, the task of caregiving is disproportionately borne by women due to a patriarchal understanding of gender roles. Even though the Indian State considers the heteronormative marital unit as the ideal, it has not adequately assisted even these units with the task of caregiving. The focus of the State has been on preserving this unit in the structure it deems ideal without adequate consideration to the needs of certain members of this unit.

It is important for the Indian State to recognise that caregiving is possible within different forms of familial units and its responsibility is to use the law to provide support to families in this. In his work, Jonathan Herring has argued for keeping the focus of family law on the notion of care. He argues that the State should support relationships marked by commitment wherein care is provided and received. This understanding of family law will provide the protection of law to even non-conjugal relationships. Therefore, the Indian State must start by recognising that care can be provided within diverse non-heteronormative familial units which can include same-sex couples, single parents, extended families, or chosen families, and that care work provided within these units must be equally valued and its costs accounted for. Further, the role of the law should not be to restrict persons from being able to choose any of these forms; instead, it should be used to support care within families irrespective of their form.

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