Expanding the Definition of 'Family' for Benefits in India

​India's Supreme Court recently observed in a ruling that social welfare benefits should extend to 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, but they also agree there's a long way to go before most organizations offer benefits to employees' same-sex or unmarried partners.

To be sure, some employers, especially multinational and technology companies, have been pushing in recent years to make their India units more diverse, but the number of organizations doing this is 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 a broader array of staff and families, they first need to ensure the rest of their employees accept these relationships, experts said.

"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.

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 the rules for government employees, which state that a female government employee can avail herself of 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 because she had secured leave to care for her nonbiological children, her biological child would be considered a third child, for which the law does not provide child care leave. A high court upheld this stance. 

However, the Supreme Court rejected the high court's ruling, saying that the petitioner should not have to suffer for first becoming a mother in a nontraditional 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, wife and children. It 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 include siblings, grandparents, children born to unwed parents and even widows who were supported by their parents-in-law.

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) in Bengaluru.

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

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 their LGBTQ employees, Singhal said.

Ideally, acceptance of staff and their families—regardless of identity or demographic—should pervade the policies of all Indian employers, experts say. At Thoughtworks, for instance, policies on benefits and leave use the word "partners" rather than "spouses" when describing coverage, Nair said. She added that the company's policy for the prevention of sexual harassment is also gender-neutral.

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

"LGBTQ is culturally not accepted in the traditionalist view of what India is today," Nair said. She hopes the recent remarks by the country's highest court could help shift some of those views.

"These things matter, and the [Supreme Court] says the definition of family is much broader," she said.

Shefali Anand is a New Delhi-based journalist and former correspondent for The Wall Street Journal. You can follow her on Twitter.