Expanding the Definition of 'Family' for Benefits in India-SHRM India

India’s Supreme Court recently observed in a ruling that social welfare benefits should also extend to atypical families, such as same-sex couples and unmarried partners, even though local laws don’t officially address them.

Diversity experts have said these remarks are a welcome step in helping change attitudes in India's conservative society, but they also agree there's a long way to go before most organizations accept diverse family setups when planning employee benefits.

To be sure, some employers, especially multinational and technology companies, have been pushing in recent years to make their India units more diverse, but their numbers are small.

“The percentage of those that have been progressive is very, very limited,” said Tina Vinod, Bengaluru-based global head of diversity, equity and inclusion at Thoughtworks, a technology consulting firm. 

For companies to recognize and provide benefits to diverse staff and families, they first need to ensure the rest of their employees accept these relationships, said experts. 

"Organizations are shying away from asking that question," said Ajay Solanki, a leader in the labor and employment law practice at Nishith Desai Associates in Mumbai. "We still need to mature as a society, as a workplace and as employers. Only then can we address this issue," Solanki said. 

Question Before the Court

The Supreme Court's remarks came about in a case by a petitioner seeking maternity leave. The petitioner, an employee of a government-run organization, was denied maternity leave for her biological child because she had previously received child care leave for two children that her husband had from a previous marriage. The petitioner's leave eligibility was governed by rules for government employees, which state that a female government employee can avail a maximum of 730 days of leave during the course of her government service, for up to two children. This leave can be taken with breaks over the years and can be used for looking after children of any age. 

The petitioner's organization said that since she had secured leave for her non-biological children, her biological child would be considered a third child for which the law did not provide child-care leave. A High Court upheld this stance. 

However, the Supreme Court rejected the High Court ruling, saying that the petitioner should not have to suffer for becoming a mother in a non-traditional way.

"The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones," said the order of the two-judge bench.

The court added that the definition of "family" goes beyond the traditional norm of husband and wife and children, and 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," it ruled.

Landscape of Family

In some ways, Indian organizations are liberal when defining family, given India’s culture of large families living together. For instance, in the eastern state of Assam, dependents who can claim compensation for an employee’s death may include a sibling, a grandparent, a widowed daughter-in-law and an illegitimate child.

Some private companies that provide medical insurance to their employees give an option to extend the benefit to up to four dependents, which can include the employee's parents or parents-in-law.

"The concept of family is very unique in India," said Mansee Singhal, rewards consulting leader for India and South Asia at Mercer Consulting (India).

At the same time, the construct of family is changing in India, especially in regards to same-sex partners. "Therefore, there's a need to realign benefits," said Singhal.

Changes in the legal landscape help. In 2018, the Supreme Court effectively abolished a colonial-era law that criminalized same-sex relations. As a result, more companies started offering benefits and policies to support the lesbian, gay, bisexual, transgender and queer communities, said Singhal.

Ideally, acceptance of diverse staff and their families should pervade the policies of all Indian employers, say experts. At Thoughtworks, for instance, policies on benefits and leave use the word "partners" rather than "spouse" when describing coverage, said Nair. "You don't need to necessarily provide proof." She added that the company's prevention of sexual harassment policy is also gender neutral.

However, creating policies is not enough unless the company follows through with educating and sensitizing the rest of the staff, say experts, which remains a problem.

"LGBTQ is culturally not accepted in the traditionalist view of what India is today," said Nair. She hopes the recent remarks by the country's highest court could help shift some of those views. "These things matter, and the SC says the definition of family is much broader," she said.