Recognition, Equality and the Constitutionalisation of Familial Relationships

*Falak Doshi

In 2022, the Supreme Court, in Deepika Singh v. PGIMER, Chandigarh  (“Deepika Singh”), applied purposive interpretation to the maternity leave rules, reading them in light of the object of maternity protection and, in doing so, expanded the constitutional understanding of ‘family’. The Court rejected the narrow biological understanding of the term ‘family’, and recognised that familial relationships may arise through remarriage, adoption, fostering and other forms. Four years later, Hamsaanandini Nanduri v. Union of India  (“Nanduri”) built upon this foundation. Deepika Singh settled that constitutional protection cannot be confined to the conventional biological family. Nanduri develops upon that premise by demonstrating that, once a relationship is within the relevant constitutional meaning of ‘family’, the particular legal benefit must still be tested against its purpose and against the guarantee of equality under Article 14. Drawing upon the reasoning in both decisions, this article proposes a two-stage framework: (i) whether a relationship falls within the constitutional understanding of ‘family’, and (ii) whether that constitutional recognition of ‘family’ carries with it a right to equal treatment under Article 14.

Constitutionalisation of ‘Family’

Deepika Singh constitutionally recognised that a ‘family’ is not confined to a fixed biological unit comprising a mother, father, and their children, but may take diverse forms. Rejecting a narrow and conventional understanding of ‘family’, the Court held that the guarantee of equal protection under Article 14 extends to diverse familial arrangements, including adoptive families and single-parent households. The Court also emphasised that maternity legislation must be interpreted purposively so as to protect a woman’s rights as both a mother and a worker, rather than being confined to traditional biological norms.

Once the Constitution recognises diverse familial structures, legislation dealing with maternity benefit cannot be interpreted on assumptions based exclusively on traditional biological family.

Purpose of Maternity Benefit

In Nanduri, the Court considered constitutional validity of the age limit provided in Section 5(4) of the Maternity Benefit Act, 1961, now Section 60(4) of the Code on Social Security, 2020, which made adoption leave available only where the adopted child was below three months of age. The Union’s defence in Nanduri proceeded from a general understanding of maternity leave as being associated with healing and recovery of the body after experiencing the physically taxing act of birthing a child. That argument is relevant to maternity benefit granted to a woman who has given birth. However, it cannot explain or determine the scope of leave available to an adoptive mother who has not undergone childbirth.

Once the benefit is extended to adoptive parents, its statutory purpose must be understood accordingly. That purpose includes caregiving, bonding and integration of the child into the family. Adoption leave therefore serves a purpose that is distinct from physical recovery, even though both forms of leave sit within the broader framework of maternity protection. Nanduri makes this explicit by identifying the distinct components of maternity leave (paras 54-57).

Once those purposes are recognised, the age of the child becomes an unreliable proxy for the need for leave. Illustratively, an adoptive mother welcoming a three-year-old child into the family may confront challenges of attachment, adjustment and integration that are no less central to the objectives of adoption leave. Accordingly, the adoptive mother of a three-year-old child may stand on the same footing as the adoptive mother of an infant below three months. The relevant question is therefore not the age of the child, but the purpose served by the leave.

Physical recovery may justify maternity leave for biological mothers, but it cannot justify the age-based distinction drawn between adoptive mothers. Once the statutory purpose of adoption leave is understood to include bonding, caregiving and family integration, the child’s age bears no rational nexus to that purpose. 

Article 14 and Under-inclusiveness

Before the statutory classification can be tested under Article 14, the object of the legislation must first be identified. In Nanduri, the Court expressly relied upon paragraph 27 of Deepika Singh in interpreting the purpose of the maternity law framework and recognising the relevance of atypical family structures to that purpose. Once that object is identified as including bonding and family integration, rather than physical recovery alone, it helps in determining who is similarly situated and whether the classification bears a rational nexus to the statutory purpose.

Having concluded that the age-based classification lacked a rational nexus to the statutory object, the Court, in Nanduri, reinforced its Article 14 analysis through the doctrine of under-inclusiveness. Drawing upon the formulation in Morey v. Doud, adopted in India through State of Gujarat v. Shri Ambica Mills Ltd., the Court reiterated that a classification may further a legitimate legislative purpose yet remain unconstitutional if it arbitrarily excludes others who are similarly situated with respect to that purpose (paras 66-67). Applying this reasoning, the Court found Section 60(4) to be defective because (i) the distinction was unreasonable, (ii) it bore no rational nexus to the statutory object, and (iii) the classification was consequently under-inclusive (para 91). The Court did not find the inclusion of adoptive mothers within the scheme to be defective. The defect lay in the further exclusion of adoptive mothers whose children were above three months of age. The Court’s reasoning therefore demonstrates that a legislative classification may pursue a legitimate purpose and still become constitutionally infirm when its chosen yardstick excludes persons who are similarly situated in relation to that purpose.

Under-inclusiveness thus exposes a defect that a simple rational-nexus test may overlook. A law may pursue a legitimate purpose and draw an intelligible classification and still be unconstitutional because it arbitrarily leaves out others who are similarly situated in relation to that purpose. That is precisely the defect in Section 5(4) of the Maternity Benefit Act, 1961. Some adoptive mothers were considered worthy of protection, but then this protection was arbitrarily cut off once the adopted child crossed the age of three months, even though the purposes of such leave remained fully engaged.  

Beyond Nanduri

The two-stage framework proposed here is not confined to Nanduri. It suggests a broader way of examining the treatment of recognised familial relationships by examining whether the relationship falls within the constitutional understanding of ‘family’, and whether the legal protection attached to it is distributed consistently with Article 14.

Family law is replete with rules that recognise relationships in principle but attach different legal consequences to them. Therefore, the relevant comparison cannot always be between relationships that look alike. It may instead have to be between persons who are similarly situated in relation to the purpose of the particular law.

Paternity leave provides a concrete illustration of this reasoning. Nanduri discusses the purposes of paternity leave, which include facilitating a father’s participation in early childcare, supporting meaningful parental involvement, and challenging the gendered assumptions about caregiving. Thus, were a paternity leave scheme enacted on this understanding of purpose, the same inquiry under Article 14 would apply.

Surrogacy provides a further illustration, and one already reflected in Section 60(4), of how the proposed framework might operate. The purposes of maternity benefit include bonding, caregiving and integration of the child into the family. These purposes may remain relevant where parenthood is established through surrogacy, even though the parent claiming the benefit has not personally experienced childbirth.

Deepika Singh recognised that familial relationships may extend beyond the conventional understanding of ‘family’. The proposed framework may therefore also have relevance to queer families.

These examples are illustrative applications of the proposed framework.

This is also why Nanduri ought not to be understood as establishing that constitutional recognition automatically entails identical legal treatment. Recognition and equality are distinct constitutional inquiries. A relationship may be constitutionally recognised as ‘family’ without every legal incident attached to ‘family’ automatically applying. At the same time, constitutional recognition cannot be a substitute for an independent justification under Article 14 where similarly situated members of one group are treated differently.

Once a relationship falls within the constitutional meaning of ‘family’, the legal incidents attached to that relationship cannot simply be assumed from traditional assumptions about what a family looks like. They must instead be examined on the basis of the purpose they serve and tested for equality under Article 14.

Deepika Singh rejected the assumption that legal protection may be confined to the conventional biological family, and Nanduri demonstrated that recognition of an adoptive family does not end the constitutional inquiry. The reasoning in Deepika Singh and Nanduri can be synthesised into the two-stage framework proposed here. The first stage asks whether a relationship falls within the constitutional understanding of ‘family’. Once that recognition is established, the second stage asks what equality under Article 14 requires in relation to the particular legal benefit or protection at issue. The broader significance of this framework is that, once a relationship is constitutionally recognised, the exclusion from a legal benefit, of persons within that relationship cannot be justified merely by reference to a conventional understanding of ‘family’. Any differential treatment must instead be justified by reference to the purpose of the particular benefit and tested against Article 14.

*Falak Doshi is a practising Advocate in Mumbai, and a graduate of Government Law College, Mumbai. 

The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.