GOVERNING ALTERNATIVE FAMILIES

Introduction:

To begin with the discussion on sexual families and alternative families, the author finds it impera-
tive to briefly introduce both the terms and its functions. The conventional or nuclear family is a
unit with a heterosexual, publicly recognised relationship at its heart. To emphasise the use of the
word “sexual”, it should be noted that our cultural and legal ideas and expectations of family are de-
terminedly built around a sexual association between a man and a woman. This is the fundamental
intimate relationship.1 No doubt, it represents the reproductive drive, but this fundamental biologi-
cal reality has significant ideological implications. The sexual family is seen as the “natural” type of
social and cultural arrangement of intimacy, mandated by divine prescription and maintained
through polling.2 The sexual family is a legal entity that is entitled to protection, such as “privacy”
or immunity from significant governmental oversight. The “sexual” or the “normal” family’s main
functions involve caregiving/caretaking of the inevitable or derivative dependants. The family form
brings in a connection of interdependency. According to Fineman, the sexual family is mostly hori-
zontal in nature, essentially meaning that it consists of a man and a woman in a ‘legal’ sexual rela-
tionship with their biological children. However, this concept is based more on the American sce-
nario. Focusing on the Indian framework, according to the author, the sexual family is largely found
in vertical schemes. Even though the concept of nuclear family is being rapidly adopted by several
Indian households, but a significant number of them are still a part of joint families or families
found in vertical schemes. The fact that the functionality of a sexual family in India takes a vertical
form can be substantiated with the help of Section 125 of CrPC, which entails that a man is obli-
gated to maintain his wife, his minor children, and his parents.

With the sexual family being the conventional one, all the other forms of families are given the term
“alternative”. This paradigm being so vast in nature can include any types of relationship that has
the same functionality as that of a sexual family, like single motherhood, same-sex couples, the
guru-chela relationship often found in the Hijra community, etc.
Laws governing alternative families are conceptualised with the sexual family as its core:

1 Martha Albertson Fineman, The Sexual Family, Feminist and Queer Legal Theory: Intimate encounters, Uncomfort-
able Conversations, pg 45.
2 Ibid.
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The debate in question as to whether the major legal approaches to govern/regulate the alternative
families are primarily conceptualised by the narrowness of the sexual family as its essential core
should be answered in affirmation of the same. In the author’s view, it seems like the State is quite
invested in the idea of a sexual family for two main reasons, the first being the religious aspect, with
the the sexual family being scared, and the economical aspect, where the man of the family provides
for all the dependents. Focusing on the religious aspect, it should be noted that the State provides
the members of the sexual family with quite a few incentives. Before the privatisation of Air India,
it used to offer free tickets to the spouses and children of government officials. 3 There is also the in-
centive of Leave Travel Concession (LTC) or Leave Travel Allowance (LTA) for government em-
ployees who can take their family members, i.e, their one legal spouse and children on trips with
them.4 Apart from excluding relationships like that of same-sex couples, such schemes also ex-
cluded polyamorous relationships. Hence, a Muslim man with more than one wife couldn’t be a part
of these schemes. Further, with respect to the economical aspect, the State is actually highly inca-
pable of maintaining all of its citizens, for which it uses the man, the head of the patriarchal sexual
family. To substantiate, the author would like to cite a conversation from the class of Professor
Sourav Mandal, wherein, he stated that as the State spends around 48% of the public money on the
security of the country, it needs the man of the sexual family to provide for dependent members.

As it is evident from the above discussion that the State is extremely keen on keeping the structure
of the sexual family alive, the same must also get projected while making laws to govern the alter-
native families. One such example can be the Hindu Adoption and Maintenance Act, 1956 (HAMA)
and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), both of which pro-
hibit same-sex couples from adopting a child. Sections 7 and 8 of the HAMA employ the words
‘husband’ and ‘wife’ when describing the capacity for adoption, implying that the legislation does
not recognise adoption by any of the alternative families.

The JJ Act is applicable to all Indian citizens irrespective of their religion. Its guidelines have been
formulated through the Central Adoption Resource Authority (CARA) which is the highest body
that controls adoption matters under the Ministry of Women and Child Development. It has also
structured the Adoption Regulations, 2017 (AR) which establishes the rules and procedures for the
country’s adoption programmes. Section 57 of the JJ Act and Regulation 5 of AR cover the eligibil-
ity of prospective adoptive parents. One of the regulation specifies that “no child shall be provided

3 Air India Offers free ticket to Spouse/Child, business flight, https://businesstravelflight.blogspot.com/2010/06/air-in-

dia-offer-free-ticket-to.html (Accessed: May 18, 2022)
4 Leave Travel Allowance (LTA) – Rules, Claiming, Eligibility, Tax Exemption & Latest Updates, cleartax, https://
cleartax.in/s/lta-leave-travel-allowance/ (Accessed: May 18, 2022)
2
in adoption to a couple unless they have had at least two years of solid marital connection.” As
same-sex couples have not been given the right to get married in India yet, they are unable to estab-
lish a two-year stable marital connection, making them unqualified to be prospective adoptive par-
ents.

Hence, if a transgender man is in a relationship with another man, and wants to adopt a child to-
gether, the law in India governs such families by requiring the transgender man to undergo a sex-re-
assignment surgery and become a woman in order to be able to adopt a child. This very clearly por-
trays the inherent need of the State to regulate alternative families by keeping the idea of the sexual
family at its core.

The Protection of Women Against Domestic Violence Act, 2005 recognises live-in relationships, al-
though, it does so only for male and female cohabitants. Additionally, these relationships are re-
quired to be and look as “marriage-like” as possible. Without even getting into the discussion of
same-sex couples cohabiting together, the State even requires women in heterosexual relationships
to behave as “marriage-like” as possible. This again portrays the State’s obsession with regulating
any kind of alternative family in consonance with the formation of sexual families.

Further, the Transgender Persons Act, 2019 was another step taken by the State towards confining
these alternative families into the paradigm of a sexual family to whatever extent possible. Post the
case of National Legal Services Authority v. Union of India5, which paved the way for the transgen-
der community to get their deserved rights within the framework of the Indian Constitution,
Dravida Munnetra Kazhagam, Member of Parliament Tiruchi Siva presented a private member's
bill, which was documented in consolation with the transgender community in 2014 to provide a le-
gal framework for the NALSA ruling.6 However, the State completely disregarded the recommenda-
tions made by the said community itself, and went ahead with implementation of the 2019 Act
which has problematic provisions such as “lack of self-determination, lesser punishments in cases
of violence against transgender persons, lack of reservations, and the conflation of the transgender
identity with that of persons with intersex variations.” 7 Moreover, the Act also requires a transgen-
der person to undergo sex-reassignment surgery in order to identify as a male or a female, which is
in direct contravention to the directives provided by the Supreme Court in the NALSA verdict. Fur-
5 AIR 2014 SC 1863
6 Vishakha Choudhary, Vishesh Sharma, The Transgender Persons (Protection of Rights) Bill, 2018: A Tale of Re-
neged Promises, OxHRH Blog, https://ohrh.law.ox.ac.uk/the-transgender-persons-protection-of-rights-bill-2018-a-tale-
of-reneged-promises/ (Accessed: May 18, 2022)
7 Sampoorna Working Group, SPWG Statement on The Transgender Persons (Protection of Rights) Bill, 2019, https://
sampoornaindiablog.wordpress.com/2019/07/19/spwg-statement-on-transgender-persons-protection-of-rights-bill-2019/
(Accessed: May 18, 2022)
3
thermore, the Act has also faced severe backlash on its interpretation of the word “family.” The Act
recognises families to form only through marriage, blood or adoption, essentially excluding every
other alternative family from its meaning.

Lastly, to provide further corroboration regarding this topic, the author finds it significant to talk
about the Surrogacy (Regulation) Act, 2021 to paint an elaborate picture of how the State won’t
leave any stone unturned to make sure that alternative families function in accordance with the
structure of sexual families. The main feature of the 2021 Act that depicts the imposition of het-
eronormative families on alternative families can be found in Section 4(c) which states that “only
heterosexual couples who are married for at least five years and have no child of their own and have
been medically certified to be an infertile couple are eligible to commission surrogacy.” This law
further ensures that alternative families like same-sex couples, single women, etc. cannot raise chil-
dren of their own. The only way they could do the same is by either marrying someone of the oppo-
site sex or by undergoing a sex-reassignment surgery to become the one with the opposite sex as
their partner. All the above laws that have been formulated to govern or regulate the alternative
families clearly try to portray or convert the latter into the “normal” sexual family. Moreover, the
way the term “family” has been interpreted, Indian law does not even seem to consider alternative
families as a “family.” Governing them as a separate paradigm without conceptualising them by the
narrowness of the sexual family as its essential core is a wishful thinking long way to go.

Reimagining public policies that regulate families:

A restricted view of “family” based on hetero-patriarchy is reinforced via the above discussed legis-
lation. There are many examples of Indians founding and living in alternative households that are
widely ignored by the State. Only marriage-based, monogamous, heterosexual partnerships are
recognised under Indian law. Many of the civic privileges associated with marriage are not avail-
able to people who are not biologically related, such as those in Hijra Gharanas, same-sex couples,
or polyamorous individuals.

Legal recognition of intimacy as an essential feature of personal liberty and privacy suggests that it
should be possible to retain neutrality between different types of intimate relationships and the var-
ied domestic, emotional, and monetary arrangements that go along with them. Here, we must re-
think the function of legislations in protecting adult, intimate relationships against abuse. For exam-
ple, how can the law let people define “family” their own way while simultaneously protecting
those who are most vulnerable in these arrangements?

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The first thought that comes to mind when thinking of ways to reimagine public policies that regu-
late families is the need for gender neutral laws, which is inclusive of the non-binary genders as
well. “Legal alternatives for recognising non-normative families have been especially prominent in
the discourse surrounding unmarried, cohabiting heterosexual partners as well as LGBT+ relation-
ships.”8 Other nations have implemented civil unions and registered partnerships. Many people are
choosing to cohabit rather than marry due to the prominence of loosely defined social networks like
friendships and families, therefore legislation to recognise these types of partnerships has been
passed. Non-conjugal, caring partnerships characterised by some sort of economic and emotional
interdependency are recognised by several such laws in Canada, Tasmania, and Hawaii.9

Coming back to the happenings in India, in a letter to the Law Commission, a group of lesbians, bi-
sexuals, and transgender women argued that persons who are not legally married should be permit-
ted to choose someone who may serve as legal representatives on their behalf. A person's represen-
tatives should not have to be a blood or marital connection to act on behalf of the individual in mak-
ing nominations, custody choices for minor children, legal heir decisions and end-of-life decisions.10
Laws that allow people to register their legal representatives using affidavits or other common legal
formats might facilitate this recommendation. The Mental Healthcare Act of 2017 is an appropri-
ate example of this kind of practise. The Act gives citizens a tremendous sense of control over their
own lives by allowing them to choose who they want to represented by. Section 14(3) of the Act
states that anybody who is not a minor and is able to perform the obligations of a chosen representa-
tive may do so. No blood or marital ties are required in order for this individual to act as a proxy.
An advance directive may be carried out by the designated representative if the maker of the direc-
tive so specifies. One may use this to decide how they wish to be cared for when they are unable to
make their own choices due to mental illness. Similar models could be incorporated to regulate
other legislations that deal with inter-personal rights.

Further, as stated by Martha Fineman, having a wide and inclusive view of the family, one that em-
phasises the functions of families rather than their outward appearance, i.e., their form, would be an
excellent starting point for legislators when crafting laws to address issues of intimacy and re-
liance.11 Allowing people to nominate/designate their beneficiaries whenever feasible and not pre-
8 Nicola Barker, Not the Marrying Kind: A Feminist Critique of Same-Sex Marriage, Palgrave MacMillan Socio-Legal
Studies.
9 The Reciprocal Beneficiary Act, 1997, Hawaii; The Relationships Act, 2003, Tasmania; Adult Interdependent Rela-
tionships Act, 2003, Canada.
10 Response to Law Commission on Uniform Civil Code, Orinam, http://orinam.net/lci-response-lbt-2018/ (Accessed:
May 19, 2022)
11 Martha Albertson Fineman, The Autonomy Myth:A Theory of Dependency, Ch-3, pg. 79.
5
suming connections of blood and conjugality as the only important ones is one way to recognise
that families are complicated and dynamic. The evaluation and interpretation of economic and emo-
tional dependency aspects would also be a part of this process, depending on the specific legislative
goal and scenario.12 Cohabitation and tenure of the relationship, for example, may be important in
certain circumstances but not in others. Therefore, flexibility is the key to ensure legitimisation of
alternative families, whereas, just one approach to make policies that regulate families, as por-
trayed, would not be fruitful. 

Lastly, another model that can be utilised to help envision the concept of family in a different light
is the term “strategic essentialism.” This term was coined by Gayatri Spivak, who believed that in
order to take action, one must temporarily embrace an “essentialist” perspective. The entire idea re-
volved around the fact that even if there may be many distinctions within and between groups, this
momentary essentialisation may assist foster unity and feeling of belonging to a group/race/ethnic-
ity for social action. It is also a short-term strategy to counteract poststructuralist opponents' use of
the anti-essentialism thesis.13 “Strategic essentialism empowers previously subordinated groups by
providing them a means to self-define, as opposed to being defined by those who would oppress
them. The deconstructive and yet politically effective nature of this strategy is derived from the ac-
knowledgement that the essential attributes of this group are themselves socially constructed as op-
posed to inherent or innate.”14 Minorities from all around the country may unite behind a shared
goal as an example of strategic essentialism to conquer their main political goal, i.e., equality.

“Family is family. Whether it's the one you start out with, the one you end up with, or the family
you gain along the way.”
— Modern Family (American Sitcom)

12 Brenda Cossman, Bruce Ryder, What is Marriage-Like Like? The Irrelevance of Conjugality, Canadian Journal of
Family Law, Vol 18, No 2, pp 269–326.
13 Nasrullah Mambrol, Stategic Essentialism, Literary Theory and Criticism, https://literariness.org/2016/04/09/strate-
gic-essentialism/ (Accessed: May 19, 2022)
14 Lara Karain, The Troubled Relationship of Feminist and Queer Legal Theory to Strategic Essentialism: Theory/
Praxis, Queer Porn, and Canadian Anti-discrimination Law, Feminist and Queer Legal Theory: Intimate encounters,
Uncomfortable Conversations, pg. 378
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