Family holds a significant place in Indian society, where diverse religious and cultural norms are practiced, leading to the formulation of different laws to protect the interests of various religious sects. Personal laws, such as Hindu, Muslim, Christian, and Parsi law, govern family matters for Hindus, Muslims, Christians, and Parsis, respectively.
As cultural, social, economic, and legal norms change, India has witnessed a shift from the traditional joint family system to the nuclear family system, presenting challenges for the family structure.1 The interplay between family matters, personal laws, and religion further complicates the landscape of family dynamics in India.
Family, as the most fundamental unit in human society globally, has existed since the beginning of human life.2 It serves as a source of social, physical, emotional, and community support, making it one of the oldest institutions in society. The institution of family and marriage plays a crucial role in nurturing individuals, fostering emotional bonds, and facilitating socialization.
Marriage, whether recognized by the government, society, or religion, forms an essential interpersonal relationship within the family.3 It carries deep cultural and societal significance and its dynamics often reflect a community’s prevailing values and norms.
Understanding the evolution and complexities of family law in India becomes essential in this context. The interplay of diverse personal laws and the changing landscape of family structures underscore the need for inclusive and equitable legal frameworks that protect the rights and interests of all individuals and families, regardless of their religious or cultural background.
Navigating family law in a country as diverse as India requires careful consideration of various factors, including historical perspectives, religious beliefs, societal attitudes, and the evolving needs of families. By recognizing the significance of the family as a cornerstone of society and embracing the principles of inclusivity and equality, India can strive towards fostering a legal framework that upholds the well-being and dignity of all its citizens. As the social fabric continues to evolve, the institution of family and the laws governing it will adapt and progress, creating a stronger foundation for a harmonious and inclusive society.
‘Family’ comes from the Latin ‘Famulus,’ meaning a servant. Roman law referred to a group of producers, enslaved people, and members connected through descent or marriage.4 The UNESCO report stated that a family is a kinship unit. The unit may exist as a social reality even when its members do not share a typical household.5 Historically, India was seen as a nation where family culture thrived, playing a crucial role in development and support. Traditional Indian families were extended, providing a robust support system. The family is considered sacred in India, contributing to the country’s progress. The joint family system fostered virtues like sacrifice, affection, cooperation, and selflessness.
However, the concept of family in India is evolving as the definition expands. Today, ‘family‘ refers to a group of people related to each other, such as parents and children. This broad definition encompasses family structures, including nuclear, single-parent, same-sex, and blended families.
As societal norms shift, families in India take various forms, reflecting modern realities. Embracing this diversity fosters an inclusive and tolerant society. The concept of family remains deeply ingrained in Indian culture, shaping individuals and communities. Celebrating diverse families while upholding love and respect strengthens India’s social fabric. As the nation progresses, the concept of family will continue to evolve, reflecting the changing aspirations of its people.
India’s historical context reveals a more inclusive attitude towards same-sex relationships in ancient texts and sculptures. For instance, ancient Indian texts such as the Kamasutra depicted diverse sexual orientations and identities, suggesting a more accepting approach to various family structures. However, during the colonial era, British laws criminalized homosexuality, suppressing LGBTQ+ rights.6
Historically, India’s approach to family law and homosexuality has been shaped by cultural, religious, and colonial influences. Family matters were governed by personal laws based on religion, encompassing aspects like marriage, divorce, inheritance, and adoption.
Based on religious texts, Hindu Family Law followed a patriarchal system historically, with limited rights for women. However, legal reforms during British colonial rule and post-independence aimed to address gender disparities.7
Similarly, Muslim Family Law, governed by Islamic principles, has faced debates on women’s rights in matters like divorce and inheritance. Other religious communities, such as Christians, Parsis, and Jews, also have their laws.
Regarding homosexuality, ancient Indian literature and temple sculptures depicted same-sex relationships, indicating a more tolerant attitude historically. However, during British colonial rule, introducing the Indian Penal Code (IPC) in 1861 criminalized homosexuality under Section 377, reflecting conservative Victorian-era values.
After independence, Section 377 remained in force, leading to discrimination and persecution of LGBTQ+ individuals. The modern struggle for LGBTQ+ rights gained momentum in the late 20th and early 21st centuries. The Delhi High Court decriminalized homosexuality in 2009, but the Supreme Court reinstated Section 377 in 2013.8 Finally, in 2018, the Supreme Court struck down Section 377, decriminalizing homosexuality, a significant milestone for LGBTQ+ rights in India.9
While the legal landscape has evolved, societal attitudes toward homosexuality vary across regions and communities. Traditional views persist in some areas, while urban areas and younger generations tend to be more accepting. The ongoing efforts to ensure equal rights and dignity for all, regardless of sexual orientation or gender identity, remain crucial.
In Deepika Singh v. Central Administrative Tribunal 10, wherein maternity leave benefit to a woman not fitting in the popular imagination of a family was denied, the bench of Dr. DY Chandrachud and AS Bopanna, JJ., observed that “familial relationships may take the form of domestic, unmarried partnerships or queer relationships.” The Court was of the opinion that the predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children, ignoring the fact that many circumstances lead to a change in one’s familial structure and that many families do not conform to this expectation, to begin with.
In the case titled Supriyo v. Union of India11, the petitioners have sought recognition of same-sex marriages in the year 2022 under several acts, including the Special Marriage Act, 1954, the Foreign Marriage Act, 1969, and the Hindu Marriage Act, 1955, and the same be made gender neutral.12 However, there was a ratio of 3:2, and as of now, even in 2024, same sex marriage is not recognised and safeguarded in India.
In Puttaswamy’s judgment13, it has been held that, “The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the individual’s privacy recognizes an inviolable right to determine how freedom shall be exercised.…… Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty, and freedom, which the Constitution has recognized.”14
Despite the landmark ruling on decriminalization, same-sex couples still face significant legal challenges in matters related to marriage, adoption, and inheritance. The recognition and protection of same-sex marriages remain pending in Indian family law, limiting the rights and benefits available to such couples.
Several public interest litigations (PILs) and legal advocacy groups continue to advocate for recognizing same-sex marriages and protecting LGBTQ+ individuals’ rights. The Indian judiciary has acknowledged the need for equal rights and protection for same-sex couples and the legal landscape is gradually evolving to accommodate these progressive demands.15
The decriminalization of homosexuality is a significant step towards LGBTQ+ rights in India. However, legal recognition of same-sex marriages and comprehensive protections for same-sex couples in family law remains critical goals for future legal reforms. Advocacy efforts, public awareness, and judicial activism will be crucial in shaping India’s path toward a more inclusive family law framework.
The legal status of pets as property has long been entrenched in Indian law.16 However, the changing societal perception of pets as cherished family members demands a shift in the legal framework.
In recent years, there has been a growing awareness of animal welfare and the need for legal protection of pets. The Animal Welfare Board of India, through its guidelines, has emphasized the importance of responsible pet ownership and the prevention of cruelty towards animals, highlighting the significance of recognizing pets as sentient beings deserving of legal protection.17
In a landmark judgment in 2014, the Supreme Court of India, in Animal Welfare Board of India v. A. Nagaraja& Ors 18, the Supreme Court laid down guidelines to regulate the use of animals in traditional practices such as jallikattu and bullock-cart racing. The judgment reaffirmed the importance of animal welfare and recognized the intrinsic value of animals.
Pet owners increasingly seek legal provisions for their pets’ welfare, especially in custody, visitation, and estate planning matters. The legal recognition of pets as family members would address these concerns and establish legal rights and responsibilities for pet owners and caregivers.
The legal landscape surrounding the inclusion of pets in family law in India has witnessed significant developments. One such notable case is a recent judgment19 in the context of the Domestic Violence Act, 2005 (DV Act), wherein the Magistrate court in Mumbai recognized the importance of pets in the lives of individuals and families.
The case revolved around the maintenance calculation under the Domestic Violence Act and whether the expenses incurred on pets should be included in the assessment. In this case, the petitioner claimed maintenance from her estranged husband under the DV Act. As part of her claim, she sought to include the expenses related to the upkeep of her pet dogs as necessary expenditures. The respondent, however, contended that the costs incurred on pets could not be considered essential for the petitioner’s maintenance and, therefore, should not be included in the calculation.
In its judgment, the Court recognized that pets often hold a significant emotional and psychological value in the lives of individuals, and the bond between a pet and its owner can be akin to that of a family member. The Court noted that pets provide companionship, emotional support, and security, especially in strained family relationships or emotional distress.
The evolving understanding of animal rights and welfare calls for comprehensive legal reforms in family law to address the legal status and protection of pets. Future legislation and judicial decisions should focus on defining legal guardianship of pets, regulating pet custody disputes, and incorporating animal welfare considerations within family law.
Live-in relationships have become more prevalent in recent years, yet their legal status remains uncertain. There need to be more explicit legal guidelines to protect the rights and interests of partners in live-in relationships.
Several Indian courts have recognized live-in relationships as akin to marriage under certain circumstances. The Supreme Court, in D. Velusamy v. D. Patchaiammal (2010) 20, laid down factors to determine the legality of a live-in relationship and acknowledged that such relationships could be considered de facto marriages in certain situations.
The Protection of Women from Domestic Violence Act, 2005, protects women in live-in relationships, recognizing their right to maintenance, residence, and protection from domestic violence.21 This legal provision has been a crucial step in acknowledging the rights and vulnerabilities of women in such relationships.
Despite judicial recognition and legislative measures, there is a need for comprehensive legal safeguards for partners in live-in relationships. This includes addressing property rights, inheritance and protecting children born in such relationships. The legal recognition and protection of live-in relationships will likely gain further attention in future legal reforms. More explicit legal guidelines, mechanisms for enforcing rights, and recognition of live-in partners’ rights to inheritance and property require attention within family law.
The legal perspective of expanding the scope of family law in India to include same-sex couples, pets, and live-in relationships is essential to ensure equality, justice, and dignity for all individuals and families. Landmark judgments, such as Navtej Singh Johar v. Union of India and Animal Welfare Board of India v. A. Nagaraja& Ors., have set precedents that reflect the evolving legal landscape in India. However, much must be done to provide comprehensive legal recognition and protection for these diverse aspects of family life. By incorporating these recent judgments and legal developments, India can build a more inclusive and progressive family law framework that reflects the changing realities of contemporary Indian families. Through legal recognition and protection, India can pave the way for a society that values diversity, compassion, and respect for all individuals and their families. The journey towards a more inclusive family law is ongoing and continued advocacy, public awareness, and judicial activism will be instrumental in shaping a legal framework that embraces the diversity of family structures in India. By embracing the principles of equality, dignity, and compassion, India can lay the foundation for a more harmonious and inclusive society that respects and celebrates the uniqueness of each family and individual.
1HimaniBhasin, Change in Family Structure in the Modern Times, Volume 3, Issue 4, No. 66, The International Journal of Indian Psychology (2016), https://ijip.in/wp-content/uploads/2019/02/18.01.169.20160304.pdf
2John DeFrain, “Creating a Strong Family: Why Are Families So Important?” Historical Materials from the University of Nebraska-Lincoln Extension. Paper 343,2001, https://digitalcommons.unl.edu/2009.3.html, (last accessed on 24 July 2023)
3Ibid.
4Sanjay Bhattacharya, Social Work: Interventions and Management, Deep and Deep Publications, New Delhi, 2008, p.3
5Bangkok, Thailand: UNESCO; 1992. UNESCO Principal Regional Office for Asia and Pacific. The changing family in Asia: Bangladesh, India, Japan, Philippines and Thailand.
6Tanushree Mohan, The Legal, Colonial, and Religious Contexts of Gay and Lesbian Mental Health in India, 2018, https://repository.wellesley.edu/object/ir826
7Tanja Herklotz, Religion Personal Laws in India from a Women’s Rights Perspective: Context and some Recent Publications, 2015 South Asia Chronicle https://www.rewi.hu-berlin.de/de/lf/ls/dnn/staff/th/religion-based-personal-laws-in-india-from-a-womens-rights-perspective-context-and-some-recent-publications
8Suresh Kumar Koushal vs. Naz Foundation, (2014) 1 SCC 1
9Navtej Singh Johar v Union Of India, AIR 2018 SC 4321
102022 SCC OnLine SC 1088
11Writ Petition (Civil) 1011 of 2022
12Mapping the Progression of LGBTQ+ Rights in India- Important Laws and Judicial Pronouncements, 2023 SCC OnLine Blog OpEd 106 https://www.scconline.com/blog/post/2023/06/18/mapping-the-progression-of-lgbtq-rights-in-india-important-laws-and-judicial-pronouncements/
13K.S. Puttaswamy v. Union of India AIR 2017 SC 4161
14Jumanah Kader & T. Thirumozhi, The Congruity of Cohabiting Partners and It’s Statutory Exigency, 16 Supremo Amicus 123 (2020). https://supremoamicus.org/wp-content/uploads/2020/03/A17.v16.pdf
15Supriyo Chakraborty v Union of India, W.P. (C) 1011/2022
16SaskiaStucki, Towards a Theory of Legal Animal Rights: Simple and Fundamental Rights, Oxford Journal of Legal Studies, Volume 40, Issue 3, Autumn 2020, Pages 533–560, https://doi.org/10.1093/ojls/gqaa007
17Animal Welfare Board, India, http://www.awbi.gov.in/
18Animal Welfare Board of India v. A. Nagaraja. (2014 (6) SCALE 468).
19https://www.livelaw.in/pdf_upload/dv-act-pets-480733.pdf
20D. Velusamy v. D. Patchaiammal, (2010)10 SCC 469
21Live-in relationships covered under domestic violence Act: KirenRijiju, The Hindu, https://www.thehindu.com/news/national/live-in-relationships-covered-under-domestic-violence-act-kiren-rijiju/article66293547.e
Mr. Sukhjeet Singh
4th year law student,
Symbiosis Law School, Pune
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