‘Atypical’ Love: The Supreme Court’s Decision in Deepika Singh vs CAT

[This is a guest post by Karan Gupta.]

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In a recent judgment delivered in Deepika Singh v. Central Administrative Tribunal and Ors., the Supreme Court of India granted relief to a woman, who had been denied maternity leave on the ground that she had previously availed child-care leave for her two non-biological children. Although it is a short judgment, the underlying premises and the observations recorded have far-reaching implications for the socio-legal understanding of parental-care as well as the traditional understanding of the ‘family unit’.

I argue that the line of enquiry adopted by the Court was informed by the target beneficiary of the provisions (women) and the manner in which gender-ascribed parental-care roles exclude women from the job market. The Court relied on these ascribed roles for the limited purpose of assessing whether twin-benefits of maternity leave and child-care leave may be extended. At the same time, the Court was cautious to avoid the trap of essentialising women with child-care responsibilities [I]. I assess how the Court’s expansion of the traditional parent-child paradigm as extending beyond biological children has implications for the traditional socio-legal understating of the ‘family’ as being a fixed and unchanging unit comprised solely of a married cis-heterosexual man (father/husband) and a cis-heterosexual woman (mother/wife), and children born to them. I explore the broader contributions of this to Indian jurisprudence [II]. I conclude that the Court recognised not just the myriad ways in which individuals assume parental responsibility, but also the myriad ways in which individuals forge familial ties. In doing so, the Court has invited a re-imagination which offers a significant contribution to broadening the ambit of a “right to love” from being restricted to the right to form intimate relationships with a limited set of individuals, to mean the right to form intimate relationships with anyone.

Facts

The case concerned a challenge to the denial of maternity leave to a woman (‘appellant’) for her first biological child. Under Rule 43(1) of the Central Services (Leave Rules) 1972 (‘1972 Rules’), a female government employee “with less than two surviving children” may apply for maternity leave for a period of 180 days. Under Rule 43-C, a female government employee with minor children may apply for child-care leave for a maximum period of two years to take “care of up to two children”. The Post Graduate Institute of Medical Education and Research (‘Institute’) denied the appellant’s maternity leave application on the ground that she had entered into the register and availed child-care leave for two children of her spouse from his previous marriage. Consequently, her first biological child, deemed by the Institute to be her third child, disentitled her to maternity leave under Rule 43(1), as she failed to meet the statutory condition of having fewer than two surviving children.

The court of the first instance (Central Administrative Tribunal) and the appellate court (High Court of Judicature) dismissed her challenge on similar grounds. The core question before the Supreme Court, centered around Rule 43(1), was whether a woman who availed child-care leave for two non-biological children was disentitled from availing maternity leave for a biological child.

Holding

The Court held that maternity leave and child-care leave constituted distinct entitlements, with the latter being available at any time (for instance, during the child’s education or sickness) and not just at the time of birth. The Court further held that merely because the appellant undertook child-care responsibilities “in ways that may not find a place in the popular imagination”, she was not disentitled from availing maternity leave. The Court concluded that “the fact that the appellant’s spouse had two biological children from his first marriage would not impinge upon the entitlement of the appellant to avail maternity leave for her sole biological child.” Thus, even though the Institute had permitted the appellant to register two non-biological children and avail child-care leave, she would be entitled to maternity leave under Rule 43(1) for her first biological child.

It is how the Court reached this conclusion that is worth unpacking in some detail.

Analysis

Framing the line of enquiry under a (beneficial) delegated legislation

Note that the 1972 Rules are silent on whether the word ‘children’ in Rules 43(1) and 43-C means biological children only. A focus on defining the word could have resulted in an anomalous situation. If the Court had concluded that ‘children’ in Rule 43(1) meant only biological children, the appellant would have been granted relief, but a strong argument could then be made to deny the grant of child-care leave under Rule 43-C for non-biological children (as both provisions use the word ‘children’). On the other hand, if the Court had concluded (as the Respondents argued) that the word ‘children’ in Rule 43(1) included non-biological children, the appellant would have been denied maternity leave on the ground that her first biological child is a deemed third child.

Could an alternate line of enquiry be framed which may avoid this anomalous situation? The Court shifted focus away from the ambit of the word ‘children’ to the target beneficiary of the two provisions – women. This involved an exercise in determining the objective with which the 1972 Rules were framed.

The Court examined similar provisions (under the Maternity Benefit Act 1961) and held that the objective of these provisions is to ensure that childbirth or child-care responsibilities do not disentitle an individual from being paid their wages during a period of leave for childbirth or child-care. In their logic, the 1972 Rules “entrench and enhance” the general non-discrimination principle of Article 15 of the Constitution and flow from the enabling provision in Article 15(3) to enact beneficial provisions for advancing the interests of women. Having reached this conclusion, the Court’s enquiry was further informed by the effect of gender-ascribed parental roles in preventing women from accessing the economic marketplace.

The Court opined that that in cis-heterosexual families (such as the present case), women often undertake a disproportionate share of child-care. The Court relied on statistics which found that women spend 577% more time on unpaid work than men (presumed to account for disproportionate child-care responsibilities), and held that “women continue to bear the primary responsibility for child-care”. Consequently, the 1972 Rules align with Constitutional postulate under Article 15 and cognate legislation and constitute socially beneficial delegated legislation.

An important question is apposite here – does this reliance on gender-ascribed parental roles unwittingly essentialise women with child-care? The Court avoided consciously falling into this trap. The Court noted that women are “pressed” to undertake a disproportionate share because of “gendered roles assigned to women and societal expectations”. Compelled by these social circumstances, they often find themselves excluded from the economic marketplace. The Court was careful in recognizing that child-care includes maternity leave, paternity leave and child-care leave. These observations are significant. The Court referred to gender-ascribed parental roles which operate in society to prejudice and stereotype women (de facto) to frame the nature of the 1972 rules as a beneficial delegated legislation. At the same time however, the Court carefully rejected an essentialisiation through an underlying reasoning that the idea of women as caretakers is not ‘natural’ but ascribed.

The recognition of de facto inequality or unfavorable treatment and employing it in extending a benefit to those at its receiving end itself promises broad implications beyond a case on maternity leave. Recall here that it is a common defense against indirect discrimination claims generally that as long as the law applies equally to all people (de jure equality), it is irrelevant how the same may perpetuate inequality in effect on the ground (de facto inequality). In this understanding, any interpretation of the law or action operates independently of the social current and on-ground realities. However, a fundamental problem with this acontextual interpretation is that it overlooks that the legal order, in fundamentally seeking to govern social relations, must be informed by social realities. For instance, it is odd to fix an arbitrary minimum wage without a complete understanding of present-day wages, the purchasing power of those wages, and the minimum standard of living required for a fulfilling life. There is a strong argument then social currents and power structures must be recognised and inform the interpretation of the law.

Here, the Court undertook two distinct steps – first, it recorded a finding on the objective of the 1972 Rules by focusing on women as the target beneficiaries and second, crucially, it recognised and relied on de facto inequality caused by gender-ascribed parental roles to inform its understanding of the 1972 Rules and conclude that it is a socially-beneficial delegated legislation. In the process, it affirmed that the law and its interpretation must be alive to social realities, including de facto inequality which operates in society. Further, it is possible to inform our understanding and the interpretation of the law by recognising de facto inequality, without essentialising/crystallising those identities (see Seigal’s excellent work on how a rejection of de facto inequality in informing law and policy has complicated the affirmative action debate of the SCOTUS).

Adopting the reasoning above enabled the Court to frame the core enquiry in the adjudication – whether an individual could be extended a twin-benefit (child care-leave and maternity leave) under a beneficial delegated legislation. This was a viable alternative to focusing on the ambit of ‘children’ and consequently adopting one of the two alternate paths which would frustrate one benefit. This sets the stage for the judgment to assume further significance in inviting a re-imagination of parental care and the understanding of ‘family’.

The Forms of Parental Care and Familial Love

In the traditional parent-child paradigm, parental care is assumed to be restricted to biological children. The Court recognised that this understanding ignores the myriad ways in which individuals come to assume parental-care responsibilities – either by choice or circumstance. Guardians and caretakers of children, who often occupy the roles of ‘mother’ and ‘father’, may “change with remarriage, adoption, or fostering.” Thus, individuals often assume parental-care responsibilities towards non-biological children as well.

For instance, in the present case, the appellant had transcended the traditional parent-child paradigm and assumed the role of a parent by caring for two children who were born to her husband from his previous marriage. Similarly, an individual may adopt a child and consequently assume the role of a parent. In both cases, the individual transcends the traditional parent-child paradigm and assumes parental responsibility for non-biological children. By reading the terms ‘guardian’ and ‘caretaker’ on one hand and ‘parent’ on the other as non-exclusive terms, the Court was alive to social realities and questioned the foundation of restricting the understanding of parental-care to only biological children. To the Court (and rightly so), parental-care manifests in numerous ways which extends beyond biological children. On the face of it, these observations are significant in recognising that individuals manifest their love towards both biological and non-biological children and step into the shoes of a parent.

What implications does this have for the conception of the ‘family’?

The traditional parent-child paradigm often informs and is informed by an understanding of the family as a fixed and unchanging unit comprising a married heterosexual man (husband/father) and a heterosexual woman (wife/mother), and children born to them. In this understanding, the family unit exists for the procreation and care of children and by extension, a family unit is definitionally a marital union between a man and a woman. In society and in law then, any other union is not considered a family, and individuals in such unions who assume child-care would be guardians at best, but not parents. This understanding of the family, coupled with the traditional parent-child paradigm, excludes from the popular understanding of a family and parental responsibility any non-conforming structures which may comprise loving partners (including queer relationships) and child-care responsibility (including non-biological children).  

However, as the Court broadened the traditional parent-child paradigm to include parent-care outside marriage (i.e., through remarriage, adoption, or fostering), this opened one door to interrogate and reject the assumption of the family as a fixed and unchanging unit comprising a union between a man and woman. Addressing this understanding of the family, the Court held:

“…This assumption ignores…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. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. 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.” [Emphasis added]

The above observations are significant. The Court recognised that unmarried partnerships or queer relationships, though outside popular imagination, are manifestations of a family and are equally deserving not only of protection under the law (say in the negative sense of non-discrimination), but also the benefit of the law (say in the extension of social benefits and entitlements). To the Court, the family is not a fixed and unchanging unit, but is fluid in being a manifestation of the many ways in which we express love.

This expanded understanding of the ‘family’ is significant for two reasons:         

First, in India, the beneficiaries of marriage legislation (and by extension divorce and maintenance legislation) are cis-heterosexual individuals, and the beneficiaries of adoption legislation are married couples or single individuals. Whilst some benefits have been extended to unmarried partnerships, this is largely confined to cis-heterosexual partnerships. Presently, as same sex marriage has no legal basis, queer relationships are denied legal recognition of marital ties as well as the right to adoption. For instance, under the Adoption Regulations, 2017, framed by Central Adoption Resource Authority, despite some ambiguity, only married couples having at least two years of stable marital relationship are eligible for adoption. Thus, while there is no direct prohibition to same-sex couples adopting children, the lack of a legal recognition of same-sex marriage means that adoptions by same-sex couples are indirectly barred. Keep in mind that this bars not only individuals who enter atypical familial relationships from adopting/or fostering but also children from receiving love and care from such individuals.

Recall here my observations above that the Court’s recognition of de facto inequality and unfavorable treatment has broad implications beyond this case. Pending and future cases which either challenge the exclusion of certain forms of companionship or parent-care from legal recognition can bring to fore and rely on how the lack of legal recognition furthers de facto inequality and unfavourable treatment. In backdrop of multiple petitions pending before the Delhi High Court seeking the recognition of same-sex marriage and the opposing stand of the Union Government that ‘spouse’ means only a husband and wife, the observations on de facto inequality invite an interpretation which extends the protection under and benefit of the law, rather than denies the same. Further, the marked observations on unmarried partnerships and queer relationships as a manifestation of family assume significance in setting the basis for a precedent-backed argument for legal recognition.

Second, these observations contribute to the rising stream in Indian jurisprudence which broadens the understanding of a “right to love” from being restricted to the right to form intimate relationships with a limited set of individuals, to mean the right to form intimate relationships with anyone. Recall here that in decriminalising consensual sexual relations between same-sex individuals and also recognising the right to love as extending beyond sexual acts, the Supreme Court in Navtej Johar had opined that the battle against:

“…the limits imposed by structures such as gender, caste, class, religion and community makes the right to love not just a separate battle for LGBT individuals, but a battle for all.”

The Court also held that:

“…decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements.” [Emphasis added]

This steady stream has seen other recent inflows from different quarters. In 2019, the Madras High Court upheld a marriage between a cisgendered man and a transgender woman, thus legitimising the validity of marriage across different genders. In Shafin Jahan v Ashokan, the Supreme Court opined that:

“The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith.” [Emphasis added]

This stream hints that the time is ripe to interrogate the socio-legal barriers which reduce the right to love to demarcated and pre-defined patterns of companionship. In Deepika Singh, not only did the Court recognise manifestations of love which cut across the traditional parent-child paradigm and the traditional understanding of the ‘family’, it also concluded that equal benefit of the law (here maternity leave) may not be denied on such basis. This advocates for a step further than the mere removal of legal barriers and extends to the benefits provided under law.

It appears that the Court did not record a definitive finding on the meaning of ‘children’ in the Rules 43(1) and 43-C. It appears to have avoided the anomalous situation noted above by expanding the traditional parent-child paradigm to include child-care for non-biological children whilst also opining that the Institute’s decision to grant child-care leave for the appellant’s non-biological children may be a matter on which the Institute took a compassionate view at the relevant time. Informed however by its understanding that the 1972 Rules facilitate the continuation of women in the workplace and that an interpretation which extends the twin-benefits of child-care leave and maternity leave should be adopted, the Court held that appellant should not be denied maternity leave merely because she entered into a parent-child relationship or undertook child-care responsibilities “in ways that may not find a place in the popular imagination”.

Conclusion

At first glance, the extension of the maternity leave benefit to the appellant appears to be a work-around explicit statutory text making maternity leave conditional to having fewer than two surviving children. However, as I have argued above, it is in the underlying premises and the reasoning adopted by the Court in reaching its conclusion, that the judgment assumes significance. By recognising gender-ascribed parental stereotypes and extending a twin benefit under the 1972 Rules on its basis, the Court advanced gender justice and also invited a more inclusive reimagination of the family. In recognising the numerous ways in which individuals manifest love towards children (remarriage, adoption, and fostering), and the atypical ways in which individuals manifest love towards one another (unmarried partnerships or queer relationships), the Court recognised not just the myriad ways in which individuals assume parental responsibility, but also the myriad ways in which individuals forge familial ties. In doing so, Deepika Singh marks a significant contribution to broadening the ambit of a right to love from being restricted to the right to form intimate relationships with a limited set of individuals to mean the right to form intimate relationships with anyone.

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Disclosure: the author is a former judicial-law-clerk of the judgment-author.

The Supreme Court’s Marriage Equality Judgment – VIII: On Adoption [Guest Post]

[This is a guest post by Hardik Choubey.]

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The Supreme Court’s (SC) judgment in Supriyo @ Supriya Chakraborty v Union of India (Marriage Equality Judgment) has been discussed on this blog over multiple essays. However, one facet of the judgment which has not been given much attention is the court’s decision to uphold the Central Adoption Resource Authority’s (CARA) Adoption Regulations, 2017.

CARA is a statutory body created through the Juvenile Justice Act, 2015 (‘The Act’ or ‘JJ Act’). It is empowered under Section 57 to frame adoption regulations to provide eligibility criteria for Prospective Adoptive Parents (PAPs). The petitioners had assailed the adoption regulations on two grounds: first, that the 2017 regulations went beyond the powers granted to CARA under the JJ Act and second, that the distinction created for the purpose of adoption between married couples and unmarried couples under the regulations was discriminatory and violative of Art. 14 and 15 of the Constitution (see here).

The majority (Bhat, J. joined by Kohli, J. and Narasimha, J.) held the regulations to be constitutionally valid as they did not find them to be violative of the constitution or beyond the scope of the JJ Act. The minority (Chandrachud, CJ by himself – as Kaul, J. makes no reference to the issue) found CARA Adoption Regulation 5(2)(a) and 5(3) to be unconstitutional for three reasons: (1) Exceeding the scope of the JJ Act, (2) Violating Article 14, and (3) Indirectly discriminating against atypical unions in a manner impermissible under Article 15.

In this article, I argue that the majority’s reasoning to reach its conclusion is erroneous on multiple grounds.  First, it impermissibly frames the scope of the governing provision in a manner which ensures that the regulations would be construed in a way which allows discrimination against non-heterosexual unions. Second, it justifies this discrimination-enabling scope of the provision by relying on the paucity of allied benefits that LGBTQ+ couples face and, Third, that it once again finds discrimination against non-heterosexual couples but fails to remedy it. For the reference of the reader, Section 57 of the Act and the relevant parts of regulations have been reproduced below:

Discerning the Scope of Section 57, JJ Act: Conditioning the Question to Pre-determine the Answer

CJ Chandrachud’s opinion follows a systematic analysis of Section 57, where he first acknowledges that the provisions of the act are intended to ‘promote the best interest of the child and ensure their development’ and that s.57’s ascription of an eligibility criteria for PAPs would be an extension of that principle (¶298). To that effect, he holds that s.57(2) does not narrow the types of couples who can adopt a child, but rather, it prescribes that if the couple in question is a ‘married couple,’ the consent of both the spouses would be required for the adoption. In that manner, the scope of s.57(2) was not to exclude unmarried couples, but to provide for a statutory requirement specific to married couples, in order to ensure that the child enters into a marital home where both the parents consented to their adoption, as it would be in the best interest of the child.

Justice Bhat’s opinion, however, rejects this reading of the provision. Instead, he argues that even though the word ‘couple’ is not preceded by ‘married’, the presence of the noun ‘spouse’ later on in s.57(2) makes it clear that the section ‘intends joint adoption only to married couples’ (¶122 in Bhat, J.’s Opinion). He argues that the presence of the word ‘spouse’ necessitates that the meaning of ‘couple’ in the section be narrowed to ‘married couple’. The result of narrowing down the word ‘couple’ to mean ‘married couple’ is that unmarried couples are excluded from jointly adopting a child. Justice Bhat himself later finds such an exclusion to be impermissible indirect discrimination against non-heterosexual couples; however, he shifts the responsibility of eliminating such discrimination upon the political branches (¶131, 132).

It is hard to escape the fact that the discrimination that non-heterosexual couples face in this instance is a result of the interpretation to the statute that Justice Bhat bestowed. It is a clear rule of statutory interpretation that when there are two possible constructions of a statute, where on one construction the statute will become ultra vires the powers of the legislature, the interpretation which would sustain the validity of the provision should be preferred that the legislature is presumed not to have intended an excess of its jurisdiction (see Olga Tellis v BMC ¶44; GP Singh, Principles of Statutory Interpretation, at Page 444-445). The statutory meaning ascribed by the Chief Justice to s.57, JJ Act ensured that the statute was construed in a plausibly wide manner, something which the majority refused to do.  

For their assertion, the majority relies on an interpretive principle (noscitur a sociis) which stipulates that ‘meaning of a word should be known from its accompanying or associating words’. However, this entire exercise is an erroneous application of that principle itself. First, the principle of noscitur a sociis is a mere principle of construction which has no application in cases where an otherwise wider meaning ensures that the statute remains effective and operative and an application of the principle would make the statute ultra vires (See GP Singh, Principles of Statutory Interpretation, at Page 380; State of Bombay v Hospital Mazdoor Sabha, ¶9). Second, provisions have to be read as a whole in order to give them their intended effect (see here). Section 57 as a whole was admittedly intended to promote the best interest and development of the child. Its scheme allows for unmarried persons of any orientation to adopt a child and makes no facial distinction as to whether the family unit the child would enter into is a “typical” or “atypical” one. It does not follow that the mere usage of a singular noun would control the whole provision so as to exclude what are considered ‘atypical family units.’ Thus, the Chief Justice’s interpretation of s.57(2), where it was squarely construed as part of a provision which governs a specific statutory requirement as to married couples, in pursuance of the intent of the provision as a whole, was the only practicable construction.

However, as I will show below, the construction that the majority preferred is justified in the opinion on the basis of an unrelated state purpose, that of ‘allied entitlements of marriage’. These benefits were the very point of contention in other prayers of the petitioners and interestingly, a very similar approach to those prayers was taken in erecting artificial barriers to the exercise of joint-adoption by non-heterosexual couples.

Erroneously linking exercise of joint-adoptions to entitlements emanating from marriage

Once the majority had construed a reading of the JJ Act which essentialized marriage as a pre-condition to joint-adoption by couples, Justice Bhat’s opinion holds that the adoption regulations are intra vires their parent statute. This is because, in his opinion, when a couple adopts a child, the legal benefits flowing from marriage (such as maintenance, succession, custody, etc.) determine the rights of the child towards their parent and vice-versa. Since there don’t exist similar legal regimes for unmarried couples, the law would be unable to guarantee the rights of the child in the case of breakdown of such a couple. The majority holds that since this would not be in the best interest of the child, the Adoption Regulations provide a barrier against such a possibility and thus have a nexus with the object of the act (¶125-126).

However, a mere perusal of the statutory scheme of the JJ Act and other regimes regulating child-parent relations would have countered the assertions of the majority. Section 63 of the JJ Act creates a legal fiction wherein the adopted child becomes the child of the adopting parent(s) as if the child were born to them. Indian law does not make a distinction as to maintenance provisions between a child and their parent(s) on the basis of the parent’s status as a married or unmarried couple: this can be discerned through s.125 CrPC, s.20, Hindu Adoption and Maintenance Act, etc. Similarly, with respect to succession, an adopted child is treated as a legitimate child without regard to the marital status of the parent(s). Further, as the Chief Justice points out in his opinion, this legal relationship between the child and parent(s) is not altered in the case of breakdown of relationship of the parents, meaning that the interests of the child would be equally protected without regard to the marital status of the parents (¶338, Chandrachud, CJ’s Opinion).

Thus, the force of the argument of the majority in holding the regulations intra vires the object of the JJ Act (which was to secure ‘the best interests of the child’) is misconceived. Further, in any case, the majority does not deal with or justify why Regulation 5(3)’s emphasis on ‘two years of stable marital relationship’ is within the scope of the object of the act.

A consistent theme: No remedy for discrimination

Earlier posts on this blog have criticized the court’s approach to discrimination in the marriage equality judgment, where the court has found impermissible discrimination against non-heterosexual couples- but refused to remedy it (see here and here). However, the majority’s approach to the exercise of joint-adoptions by non-heterosexual couples stands on a different footing still.

In Supriyo, the court had a judicially sound path to guarantee an ancillary benefit that many petitioners had dreamed of, in hopes of leading a regular life in India (For one such example, see Amburi Roy’s Petition). However, the majority harkened back to an erroneous application of a principle of interpretation, which led to the denial of this basic entitlement to non-heterosexual couples. Further, even the majority found that the scheme of the act and CARA regulations, as they had interpreted them, indirectly discriminated against non-heterosexual couples (¶131, 132, Bhat, J’s Opinion). However, the majority refused to act in a manner which would either put an end to such discriminatory action (by striking down the regulations and harmoniously reading the act, as the CJ had done) or provide any alternative relief. This consistent theme in the majority’s reasoning is one seldom seen in other cases relating to discrimination at the SC (see here). This might be a regressive trend which shows a dismissive attitude against supposed ‘miniscule minorities’, though it is hoped that is not the case.

The case for joint adoption rights was distinct in one manner from the plea for marriage equality, in the sense that multifarious distinct regimes were not really required to be interfered with. However, in a near-mechanical approach, one quite similar to the method applied towards the challenge to the SMA, the court itself shut the door to the exercise of joint adoption by atypical unions and then abnegated that responsibility to an indeterminate promise by an uncongenial political establishment.

Conclusion

It has been my attempt to show that the path taken by the majority in denying joint-adoption rights to non-heterosexual couples was the wrong one, particularly when compared to the one envisioned in the Chief Justice’s Opinion. The CARA Regulations and Circular clearly exceed the scope of the act and the constitution, and should have been struck down as such.

However, many can yet hope that legislative reform provides the right to adopt to non-heterosexual couples. A parliamentary standing committee report had suggested a ‘new legislation’ rationalising the adoption provisions under the JJ Act and the Hindu Adoption and Maintenance Act and recommended that the benefits of the provisions be extended to the LGBTQ Community [At 29]. It is wished that such a development is holistic in nature and happens soon.  

Guest Post: Love, religion, and pre-marital sex – the Allahabad High Court on live-in relationships

[This is a guest post by Anshul Dalmia.]

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In a recent judgment, a two-judge bench of the Allahabad High Court (“Court”), dismissed a writ petition of a major couple residing in a live-in relationship, who were seeking protection from harassment from their families, and encroachment on their personal liberty. The Court rejected the application on three major grounds, discussed below.  

Firstly, the Court stated that the binding precedent of the Supreme Court (“SC”) highlighted by the petitioners did not indicate that live-in relationships were promoted by the SC, since Indian law was traditionally biased in favor of marriage. The Court further stated that the SC was merely accepting a social reality and had no intention to alter the social fabric of the country. Moreover, the Court seized this opportunity to ‘create awareness in young minds’ regarding the ‘various legal hassles’ these kinds of partnerships could entail. Secondly, the Court observed that pre-marital sex was not recognized in Muslim law and the punishment for indulging in acts of fornication outside marriage is a hundred lashes and stoning to death. Lastly, the Court believed that invoking the writ jurisdiction for such a matter would be a wrong assumption of extraordinary power.

Through this post, I seek to critique this judgment on the grounds of non-consideration of contemporary precedent and complete ignorance towards the pro-liberty constitutional jurisprudence that has painstakingly been developed by the SC over the course of several years.

Disregard of precedent

At the outset, the Court refers to earlier decisions that have presumed live-in relationships to be “in the nature of” marriages. Further, it provides a reference to decisions wherein Courts have stepped in and protected the rights of people within such marriage arrangements. D Velusamy and Indra Sarma were cited, which provide the conditions for such a relationship to be considered to be a ‘relationship in the nature of marriage’ as per the Domestic Violence Act, 2005. Dhanu Lal and Vidhyadhar were cited, which allowed women to inherit property after the death of their live-in partner. It is surprising that with the presence of these in-built judicial safeguards, the Court believed that young minds needed to be educated regarding the ‘legal complications’ of live-in relationships. However, the Court’s tryst with the decisions of Lata Singh and S. Khushboo is of significant importance.

In Lata Singh, the SC had observed that a live-in heterosexual relationship between consenting adults did not amount to any offence. Moreover, the SC in S. Khushboo, building further jurisprudence, had categorically upheld that live-in relationships are not a statutory offence and consensual sexual relationships amongst adults outside marriage are not prohibited. The Court dismissed any reliance on S. Khushboo by stating that the decision has to be read solely in the context of the facts of the case.

There are several issues with such a position: first, even if S Khushboo was to be rejected, Lata Singh still remained a precedent clear enough to prevent the High Court from adopting such a formalistic approach; but in any event, the S Khushboo observation has been recently approved by the SC in X v. Principal Secretary, NCT of Delhi, (as quoted below) and could be very well considered a binding precedent.

The law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures. In S. Khusboo v. Kanniammal, a three-judge Bench of this Court acknowledged that live-in relationships and pre-marital sex should not be associated with the lens of criminality.

Additionally, in Deepika Singh v. Central Administrative Tribunal, the SC upheld the legality of atypical family relationships such as ‘unmarried partnerships’ which could impliedly mean to indicate live-in set-ups:

Familial relationships may take the form of domestic, unmarried partnerships or queer relationships [..] 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.

Hence, the Court’s observation that the SC did not promote such relationships is incorrect and incongruent with previous decisions. It was not the duty of the Court to impose moral observations vis-à-vis the ‘promotion’ of such arrangements by the SC. Rather, it had to discern the ‘legality and permissibility’ of such domestic partnerships. The recent jurisprudence as espoused in the cases of Deepika Singh and X, indicates the attempt made by the SC to recognize non-traditional manifestations of familial relationships. Denying the fundamental right of marriage and life along with not preserving the right to personal liberty on unsubstantiated grounds, indicate a clear abdication of constitutional responsibility by the Court.

Marriage Before Sex or Sex Before Marriage?

The Court while attempting to substantiate the logical analysis in its judgment, refers to provisions of the Quran and the extreme prohibition upon sexual intercourse before marriage. Additionally, any sexual, lustful, affectionate acts are to be severely punished. I contend that invoking of Islamic Law – whether correctly or incorrectly – in this case, is not justified, considering the facts. Firstly, it is apparent that the inter-faith couple would not permitted to marry under the Muslim Law since both need to profess Islam; the Court cannot assume that a conversion might take place for the Quaranic Law to be applicable. Secondly, the jurisprudence vis-à-vis pre-marital sex has conveniently been avoided by the Court here.

A three-judge bench of the SC in Shahin Jhahan v. Asokan K.M. held that:

Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty bound not to swerve from the path of upholding our pluralism and diversity as a nation. [..] Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith.

While the analysis of the Court regarding pre-marital sex may be considered to be an obiter dictum, it highlights the innate fear of the Courts to approve of such domestic relationships which impliedly allow an indulgence of sexual relationships before or outside the legal confines of a marriage. However, it is imperative to re-look and re-define domestic relationships and familial arrangements in the current paradigm. As correctly identified by the SC in Navtej Johar (as highlighted below), procreation is not the sole reason for companionship in today’s age.

With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship. Homer Clark writes: But the fact is that the most significant function of marriage today seems to be that it furnishes emotional satisfactions to be found in no other relationships. For many people it is the refuge from the coldness and impersonality of contemporary existence.

Thus, the permissibility of pre-marital sex has already been adjudicated upon and there exists no reason for Courts to deny protection to live-in couples on the possibility of indulging in sexual intercourse outside valid marriage arrangements.

Writ Jurisdiction: Panacea to the Malady?

The writ jurisdiction with the High Court under Article 226 is extremely wide and bestows the Court with full plenitude of judicial power to enforce fundamental rights and prevent their illegal invasion. Here, the Court despite identifying that living together is a facet of the fundamental right to life as enshrined in Article 21, believed that assuming jurisdiction under Article 226 would be improper. Additionally, the Court refused to invoke this extra-ordinary power by stating that this ‘problem’ should be uprooted socially and not through the intervention of the Court. Further, only ‘real’ grievance of a live-in couple could be entertained wherein the couple ought to prove harassment beyond doubt. The harassment to be considered, should be to such an extent that there is a threat of life. In this case, the Court believed that the interfaith couple merely wanted their imprimatur on their relationship and were not seeking any protection of their relationship.

This analysis seems to be a major aberration from the factual matrix. Here, the complaint clearly indicates that the police were harassing the petitioners since they belonged to different religions, and were doing so on the pretext of the complaint of relatives. Imposing such a high standard for intervening in cases of a textbook-clear violation and encroachment of fundamental rights truly indicates a dereliction of duty and an abnegation of the Court’s constitutional power. One can only hope that this is swiftly set right, either on appeal (if the parties so choose), or in another case.

The South African Constitutional Court’s Judgment on the Parental Rights of Unmarried Partners

On 29th June 2023, the South African Constitutional Court handed down an interesting judgment in VJV vs Minister of Social Development. The case involved the Section 40 of the Children’s Act of 2005, which – to put it simply – granted the status of parents to married couples who had children via artificial insemination, but had no such provision for unmarried partners. This exclusion of unmarried partners was challenged on the basis that it discriminated on grounds of marital status and sexual orientation. The High Court agreed with the argument on marital status, and its order of invalidity was subsequently confirmed by the Constitutional Court. The Constitutional Court granted a suspended declaration of invalidity: that is, it gave Parliament two years to correct the exclusionary defect in the law. In the meantime, as an interim arrangement, it added the phrase “permanent life partner” to Section 40, and held that should Parliament fail to act within two years, this interim arrangement would become permanent.

The judgment repays close study. First, in its finding on discrimination on grounds of marital status, the Constitutional Court noted that the South African Constitution was meant to be a bridge between an exclusionary past and a future where inclusion and diversity were celebrated. One aspect of inclusion and diversity was to no longer limit constitutional protection simply to “traditional notions of family and parenthood” (paragraph 1). Rather, “the types of arrangements that consenting adults may arrive at in how they organise their relationships and their private lives are intensely personal … the changing nature of the form of such relationships and the need for the law to include those in its recognitive reach are evident.” (paragraph 33) For this reason, there was no constitutionally valid justification for limiting the scope of the Act to married couples only. Notably, the Court did not hold that married and unmarried couples were equivalent in all respects: rather, what it held was that from the perspective of parenthood, what mattered was not the form of the relationship, but the substance. Consequently, in denying parental rights in this context to unmarried partners, “the message that is sent is that, although permanent life partners have made the conscious decision to enter parenthood, such a choice is less respected than the same choice made by married partners … It devalues the applicants’ relationship and impacts their dignity.” (paragraph 47)

Notice that the Constitutional Court was nowhere concerned with the red herring of “under-inclusion”: once it was found that there was unfair discrimination on the basis of marital status, the fact that it was simply “under-inclusion” was not even considered as a defence. And of course, the Court’s strong defence of what Indian jurisprudence refers to as “atypical family arrangements” – and its holding that such atypical arrangements were presumptively entitled to the same extent and enjoyment of rights as marital arrangements – was striking.

Secondly, the Court held that there was also discrimination on grounds of sexual orientation. The reason for this was that unlike other relationships, in the case of lesbian partners, artificial insemination was a necessary procedure if they wished to have a biologically related child. In other words:

… it is biologically impossible for two females to reproduce coitally.  They are entirely reliant on artificial fertilisation processes and, by implication, section 40 of the Children’s Act, to realise their dream of becoming parents to their biological children.  Two men in a same-sex partnership would not rely on section 40 of the Children’s Act for the conception of their biological child, as neither man would be capable of being artificially fertilised. Lesbian permanent life partners, who seek to have biologically related children, have no other alternative but artificial fertilisation.  The automatic assignment of their rights and responsibilities would accordingly, purely on the basis of their biological reproductive constraints, be exclusively governed by the impugned provisions.  Lesbian permanent life partners are therefore disproportionately affected by the differentiation occasioned by the impugned provisions. (paragraph 52)

The Court therefore found that while Section 40 was facially neutral, it had a disproportionate impact on lesbian partners, and therefore constituted indirect discrimination on grounds of sexual orientation.

Reading this analysis, one is struck by the difference between the South African Constitutional Court’s analysis, and the recent hearings before the Indian Supreme Court in the equal marriage case.* In the equal marriage case, the Indian Supreme Court, during oral arguments, the Supreme Court signalled that it would not adjudicated the validity of the thirty-day notice period under the Special Marriage Act, on the basis that it affected all couples, and not just queer couples. However, what the Court did not take into account was that after its own injunction that it would only consider the legalisation of same-sex marriages under the SMA, the only legal recourse open to queer couples was that law (along with its notice period). As in VJV, where the Children’s Act was facially neutral, but the facts were such that it was only lesbian partners who were necessarily required to go through the artificial insemination procedures, in the equal marriage case, the SMA’s notice provision was facially neutral with respect to whom it applied to, but because of a court-created reality, it would only be queer couples who would necessarily be required to take recourse to its provisions. One wishes that the South African Constitutional Court’s more generous understanding of discrimination had also been adopted by the Indian Supreme Court; perhaps it still might be.

Finally, of course, there is the remedy. The suspended declaration of invalidity is one of the striking features of South African constitutional jurisprudence. In essence, it sets up a dialogic process where the Court engages in rewriting a statute to cure invalidity, but leaves it open to Parliament to have the final say on how, exactly, the legislative solution will be crafted. The Court’s rewriting is to take permanent effect only if Parliament refuses to act, and the option then is between striking down and rewriting. This dialogic process thus allows the Court to go further than Courts normally do, and actually engage in some degree of legislative surgery, as – ultimately – it is not usurping Parliament’s role, but giving Parliament an opportunity to platy its role and amend the law in a constitution-compliant manner. In this case, the remedy involved writing in the words “permanent life partner” into the statute.

VJV vs Minister for Social Development is thus another landmark in South Africa’s rich and substantive jurisprudence of equality, non-discrimination, and creative judicial remedies.

Guest Post: Trans-parenthood and the law – lessons from abroad

[This is a guest post by Muskan Tibrewala.]

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The Kerela High Court recently heard a petition – Zahhad v. State of Kerala WP(C) 23763/ 2023 – seeking a mandamus against the State of Kerela and Kozhikode Corporation to issue a new birth certificate for the child of two transgender persons: Zahhad, a transman, and Ziya, a transwoman. The child is the third petitioner, and the parents of the child are the first and second petitioners. The mandamus asks that the birth certificate mention petitioners 1 and 2 as “parents” of their child without showing specifically the name of the petitioners as “father” and “mother” respectively.

Zahhad, a transman is the “biological mother” of the child, but identifies as a man and is currently living as a man. However, the birth certificate records him as the “mother”. Ziya, who is a transwoman and similarly lives as a woman, is recorded as the “father”. The Petitioners approached the court because the Corporation refused to register Zahhad and Ziya as “parents” in the birth certificate.

The birth certificate is issued under Section 12 of the Kerala Registration of Birth and Death Rules 1999. The corresponding Form 5 requires the name of the Father and the Mother to be set out separately. In their petition, Zahhad and Ziya have stated they want to be mentioned as parents to ensure that their child avoids embarrassment in the future because of having a man for a mother and woman for a father in the child’s identity cards. In February, they had written a letter to the Government Medical College Hospital requesting that Zahhad and Ziya be registered as the father and mother respectively.

The State’s refusal to change the form of the birth certificate hinges on the its ordering function and interests in maintaining heteronormativity. While Zahhad is considered to be the first transman in India to have given birth to a baby, this is by no means a rare occurrence. Neither is it uncommon that the state denies such transgender parents the right to be recognised with their correct gender identities on the birth documents of their children. While there is the recognition of the right of a transgender person to their self-identified gender identity, this appears to stop at the point where a transgender person claims a right to a particular parental status.  

This is because right of a transgender person to a parental status in accordance with their gender also intersects with the state’s interest in registering birth details and the right of the child to know their parents. Ahead of the Kerela High Court hearing in this matter, this essay will examine the judgements that have dealt with the parental status of transgender persons in other jurisdictions, and discuss the lessons that we might take.

Foreign Jurisprudence

In 2019, the BBC and the Guardian released a documentary titled Seahorse, about the journey of fatherhood of Freddy McConnell, a transgender man in the United Kingdom who gave birth to a child. The same year, the President of the Family Division, Sir Andrew McFarlane of the England and Wales High Court, in R (on the application of TT) v The Registrar General [2019] EWHC 2384 (Fam) denied Freddy McConnell the right to be recognised as his baby’s father. The operative part of the judgement is as follows:

The principal conclusion at the centre of this extensive judgment can be shortly stated. It is that there is a material difference between a person’s gender and their status as a parent. Being a ‘mother’, whilst hitherto always associated with being female, is the status afforded to a person who undergoes the physical and biological process of carrying a pregnancy and giving birth. It is now medically and legally possible for an individual, whose gender is recognised in law as male, to become pregnant and give birth to their child. Whilst that person’s gender is ‘male’, their parental status, which derives from their biological role in giving birth, is that of ‘mother’.

The decision refers to a similar case which was a first instance decision before an administrative court, R (JK) v The Registrar General (The Secretary of State for the Home Department and others intervening) [2015] EWHC 990 (Admin). JK was a transgender woman who was married to a woman and was the biological parent of two children. The Registrar General denied JK’s request to be registered as ‘parent’ or ‘father/parent’ on the birth certificates of both children. JK went to court against the decision of the Registrar General arguing that this violated her Art 8 of the European Convention of Human Rights (ECHR) right to private life and affected the Art 8 rights of her children to keep private the fact that their father was transgender. Hickinbottom J found that the interference with Art 8 was necessary because a balance had to be struck between harm to the individual on the one hand, and the right of a child to know their biological parent and the public interest of the state in having coherent birth registration schemes on the other.

The Grand Chamber of the European Court of Human Rights (ECtHR) in X,Y and Z v. the United Kingdom ECtHR 21830/93 (1997) decided that the United Kingdom was not violating Art. 8 of the ECHR by not recognising a transgender man as the father of his child for similar reasons. The court recognised that the family was a “traditional family” in every other sense, and that the law did not deny the applicant from acting in the social role of the father. However, the court reasoned that the birth documents were not used as much as other identity documents, and the disadvantages suffered by the child and the transgender parent would be minimal compared to the interest of the community in “maintaining a coherent system of family law”.

However, six out of the twenty judges of the Grand Chamber judges dissented, reasoning that as the state had allowed a transgender person to transition and recognised their preferred gender identity, the state must “accept the consequences and take all the measures needed to enable the applicants to live normal lives, without discrimination, under their new identity and with respect for their right to private and family life.” They further noted that the Government had not shown what harm the state would suffer in registering the applicant as the father of his child, and that the welfare of the child lay in the legal recognition of the family as it is. The dissenting judges also found that there was discrimination on the basis of sex and the state had violated Article 14 of ECHR.

In 2017, the Federal Court of Justice of Germany (Decision XII ZB 660/14) denied a transman identification as his child’s father, ruling that the role of the mother must always be attributed to the person giving birth to the child, and that the right of a transgender person was limited by law’s function of certainty. This year, in A.H. and Others v. Germany 7246/20, the ECtHR upheld another decision of the Federal Court of Justice of Germany which found that the public interest in maintaining “fatherhood” and “motherhood” as legal categories with attendant consequences, and the reliability and certainty of public registers, overrode individual interest.

In Sweden on the other hand, two cases before the Administrative Courts in 2015 and 2014 [Warren Kunce v Skatteverket, Förvaltningsrättens I Stockholm, 24685 and A and B v Skatteverket, FörvaltningsrättensI Göteborg 11453-13] upheld a transgender man’s right to be registered as a father in the birth certificate of his child. The court found that Swedish law was silent on how transgender persons should register their parental status and that they were bound by international obligations to look at the best interests of the child and recognise a person’s self-identified gender identity. The court recognised that registering a transgender man as a “mother” would be violative of the right to gender recognition and the need to protect his child’s private life. Further, this overrode the public interest in assigning a “biological mother” to each child. The court also noted that exceptions to biological motherhood and fatherhood had already been made in cases of same-sex couples and surrogacy.

Lessons for India

In India, Sections 6 and 7 of the Transgender Persons (Protection of Rights) Act, 2019 allow transgender persons to change their name and gender in “official documents relating to the identity of such person”. Under Annexure-1 of the Transgender Persons (Protection of Rights) Rules, 2020, the illustrative list of official documents includes birth certificate and marriage certificate. Further, under Section 4, “a transgender person shall have a right to be recognised as such in accordance with the provisions of th[e] Act.” On an interpretation of the Transgender Persons (Protection of Rights) Act, 2019, the question before the court will be if “official documents relating to the identity of such person” includes the birth certificate of their child. The birth certificate of their child is undeniably an official document, and it indicates the identity of the transgender parent when it uses the word “mother” and “father”.

This administrative responsibility of the state has been used by courts in other jurisdictions  as a reason for “public interest” that overrides the right of transgender persons to their gender identity and that of a child to their privacy. However, in India if it is possible to change details for a transgender person on their birth certificate per the Act, the state has little case in arguing that they cannot change the details of a transgender person on their child’s birth certificate. The integrity or reliability of the birth register system is not affected by changing these details, or at the minimum, the state has the means to facilitate it. Neither is maintaining the family law system a concern because having inconsistent gender recognition as a parent will only cause more confusion.

On violation of fundamental rights, there is violation of Article 21, 19 and 14 rights of the transgender parents and the rights of the child in terms argued in the cases above. The right to one’s gender identity, privacy and family under Article 21 has been upheld upheld by the Supreme Court in Justice K.S. Puttaswamy (Retd.) vs. Union of India (2017) 10 SCC 1. The right of transgender persons to gender identity, full civil rights and equal citizenship has been upheld by the Supreme Court of India in NALSA v. Union of India (2014) 5 SCC 438. There is also a violation of Article 15, as the transgender parents are being discriminated against on the basis of their gender. The arguments advanced in the previous paragraph also demonstrate that in this case, the “administrative responsibility” argument does not meet the requirements of proportionality: it fails on both the “rational nexus” prong, and on the “least restrictive alternative” prong.

Sir Andrew McFarlane of the England and Wales High Court in in R v Registrar General [2019] EWHC 2384 (Fam) inconsistently recognised that the word “mother” is always associated with being a “female” and that Freddy McConnell had legally transitioned to a male before conceiving. Dismissing this inconsistency as mere result of scientific advancement, Sir Andrew McFarlane created a farcical distinction between a transgender persons gender identity and their role in giving birth (they’re the same person in both instances!). The Federal Court of Justice of Germany upheld their finding on the basis that “mother” must always person giving birth to the child. However, commercial surrogacy is legal in India, as is adoption, and in both cases the non-birth mother is recognised as the natural mother. “Legal certainty” or “administrative coherence” are just smokescreens used by the state and the court for maintaining the hetero-patriarchal order that has been entrenched in the law. India, like most countries in the world, has moved past this biologically essentialist framework as is particularly clear in NALSA (supra) where the Supreme Court rejected the biological test. The state’s interest in administration surely must support having consistent gender identification on personal identification documents, as a parent or otherwise.

In cases involving children, the law perceives the welfare of the child as paramount. The right of a child to know their biological parent cannot necessarily mean that the child must know their biological contribution to the child’s birth. Is not the knowledge of the parent’s legal and current name and gender identity of the parent sufficient? In fact, the Adoption Regulations 2022 as framed by the Central Adoption Resource Authority (CARA), requires that confidentiality be maintained of documents involving biological parents if the parents have asked for anonymity. Regulation 47 that allows adopted children to root search for the parents, mandates that the consent of such parents who sought anonymity has to be sought first. Sections 21(e) and 27(6) of the Assisted Reproductive Technology (Regulation) Act, 2021 mandates confidentiality of donors in birth through the use of assisted reproductive technology. There is no inherent right for a child to know their genetic parents in India. On a balance, the right of the child to have a private family life, proper legal ties to their family, and an upbringing that does not involve harassment or embarrassment must prevail.

In India, as with other countries, the law has created exceptions to strict biological and heteronormative categories which makes the argument used in the UK and Germany of the fixed categories unfeasible. The rights of adopted children, single parents, parents who have used surrogacy are recognised. Most recently in X v. Principal Secretary 2022 SCC OnLine SC 1321, the Supreme Court held that legal recognition of “non-traditional manifestations of familial relationships” is necessary. In Deepika Singh v. Central Administrative Tribunal 2022 SCC OnLine SC 1088, the Supreme Court recognised that concept of “family” has changed in law and that atypical manifestations of the family unit are equally deserving not only of protection under law. This case is another chink in the armour of the hegemony of heteronormativity and cis-normativity in Indian law and the Kerela High Court has all the tools to rule in favour of the Petitioners.