By Sarthak Wadhwa
Introduction: The Premise of a Care-Based Relationship
The traditional understanding of a family is centred around a sexual union between two heterosexual individuals, with all other ‘familial’ relationships defined in terms thereof: a father and mother united in holy matrimony with children born of their sexual union.[1] This conception of ‘marriage’ is so deeply rooted in our collective cultural psyche that even contemporary queer relationships and other non-marital civil unions are pigeonholed into a sexual, heteronormative fold for legitimacy.[2] Naturally, parental relationships are also conventionally understood with regard to consanguinity and heredity – which stem from a sexual union between two adults, traditionally legitimised by the institution of ‘marriage’.[3] However, such a reductive definition of familial relationships as mere derivatives of a sexual union does not begin to cover the unique matrix of mutually owed social responsibilities and legal duties of ‘care’ that subsist therein: this is most evident in how the State ascertains familial relationships and corresponding responsibilities.
Purposively, when the State is notified of a subversion of a duty of familial care in a relationship viz. physical, emotional, or economic violence and abuse, a preliminary level of inquiry is conducted to ascertain a central sexual relationship between individuals: where the individuals are related by ‘marriage’, or ‘consanguinity’, the State provides a specialised remedy befitting the nature of the relationship shared between the individuals. Consequently, the State’s response to abuse differs depending on the nature of the relationship. By way of illustration, a man’s use of physical violence against a woman may warrant the State’s criminal sanction;[4] except, if the woman is the man’s wife, in which case specialised laws addressing domestic violence also become applicable.[5] Curiously, however, the State also extends the protection of such family-specific laws to non-consanguineous relationships (the fiction of adoptive parentage),[6] and even to non-marital (non-legitimised, sexual) relationships (‘relationships in the nature of marriage’).[7] This is testament to the State’s real interest in sustaining the provision and receipt of requisite care in a relationship within a family unit: in case a family unit fails to provide such care, such a responsibility would fall upon the State.
In light of this, grounding State remedy in ‘sex’, and using it as a marker of ‘care’ is only counterintuitive.[8] Parties in care-based relationships that cannot be traced back to a recognised sexual union (say, concubines,[9] or ‘illegitimate’ children[10]), fall through the fault-lines of this incongruity between ‘sex’ and ‘care’. With the increasing incidence of divorces, the growing acceptance of non-heteronormative marriage and other civil unions (queer families), and the advent of assisted reproductive technology (ART),these fault lines are likely to widen. Even where individuals in such families do not have any recognised relationship with each other, they may still be directly or indirectly associated with each other in a familial capacity (e.g., divorced partners being co-parents, queer partners raising a child together where only one of them is a legally recognised parent thereof, etc.) – without the family-specific remedies of the State to fall back on. The mutually constitutive bases of ‘marriage’ and ‘natality,’ hitherto considered foundational to a conventional ‘family,’ have become relatively unstable to accommodate contemporary families.
Such a change in the dynamics of a family warrants a shift away from ‘sex’ to ‘care’ as the unit of family association. The very premise of a care-based family law allows greater relational autonomy to individuals, ousting the prohibitive influences of heteronormativity, and accommodating a range of diverse social realities and lived experiences.[11] An iteration of such a care-based model of family law appears in a recent post on this blog,[12] in which it is argued that a separation between the ‘genetic’ and ‘social’ dimensions of parenthood not only helps realise a child’s right to knowledge of genetic origins, but also expands the conventional parent-child relationship to be more inclusive of children born of ART and/or cared for by queer parents outside the fold of marriage. However, this post expands upon the aforesaid piece to introduce a third ‘legal’ dimension of delineation of traditional parenthood.
In matters of property law and tax law,[13] where the recognition of a new set of relationships between individuals could lead to significant differences, the utility of a ‘care-based’ model of familial relationships and family law may not be intuitively apparent. Therefore, in this post, the author attempts to reconcile property law qua intestate succession with a care-based model of family law first, by conceptualising an appropriate model of a care-based parent-child relationship; second, by locating succession laws within this model; and third, by addressing the limitations of the model vis-à-vis succession law.
A Care-Based Parent-Child Relationship
In terms of heredity, a biological parent-child relationship serves a limited function of the determination of consanguinity (for marital and medical reasons).Nonetheless, the traditional, legally recognised parent-child relationship is not founded on a solely genetic link. Discernible from the position of most adoption laws which privilege legal ‘parenthood’ over natal ‘parentage’,[14] the social ‘parental responsibility’ of providing for a child’s health, safety, nourishment, and welfare traditionally vests in the former and not the latter[15] – though the two may largely coincide.
However, in a care-based parent-child relationship these three dimensions viz. parentage, parenthood, and parental responsibility are fragmented,[16] and have to be rearranged in relation to each other to formulate an internally consistent structure of a parent-child relationship. In the author’s opinion, parental responsibility is necessary but not sufficient to acquire parenthood; parentage is sufficient but not necessary to discharge parental responsibility; and, parentage is neither sufficient nor necessary to acquire parenthood.
In effect, natal parentage confers some parental responsibility to a biological parent, the discharge of which makes them eligible to acquire legal parenthood first, if they elect to do so,[17] and second, if it is in the ‘best interests of the child’.[18] In order, the soft exercise of autonomy on the part of the parent seeking formal ‘parenthood’ – binds the parent to the legalities and obligations arising therefrom.[19] At the same time, in a feat of individualised justice, the test of ‘best interests of the child’ allows an adjudicatory authority to determine if conferring parenthood to the applicant is beneficial to the child in the given circumstances.[20] At this juncture, it may also be relevant to assess the relationship between the parent and the child from a child-centric perspective,[21] allowing for a subjective recognition of relationships and lived experiences as they are, rather than assessing them against some objective/normative formulation. In either case, the parent-figure may continue to discharge social parental responsibility irrespective of any legal parenthood vesting in them.
Resultantly, the parent-child relationship in question can become one shared directly between the parent and the child, and not be defined with reference to some relationship between two other individuals.[22] Any motherly or fatherly roles (or any combination thereof, performed by a parent of any gender) performed by an individual parent are social in nature;[23] they constitute a ‘parental responsibility’ towards a child. Apropos the child, the relationship shared between these individuals is foremost that of ‘co-parents’ notwithstanding their otherwise sexual, marital, civil or consanguine relationship. This facilitates a move away from the ‘two-parent’ paradigm, allowing parental responsibility to fall upon a multitude of individuals (the child’s grandparents, uncles and aunts, step-parents, etc.) – without the need for formal ‘parenthood’ to effectively discharge the same.[24] It is the recognition of social parental responsibility outside of natal parentage and legal parenthood that is foundational for a care–based parent-child relationship.
In this form, the parentage-parenthood-parental responsibility matrix is demonstrably more accommodative of ‘unconventionalities’ such as divorces, queer families and ART. Illustratively, a step-parent (the new spouse of a parent) may discharge these responsibilities towards a child irrespective of the formal legal relationship between the child and the step-parent.[25] Similarly, a queer-couple, only one of whom may be biologically related to the child, may be legally recognised as co-parents if they choose and if both of them undertake some parental responsibilities with respect to the child, irrespective of parentage.[26] Lastly, where the child is born of three biological parents (via surrogacy, mitochondria-transplantation) – while all three of them may share parentage, one of them (the surrogate) may elect against parenthood beforehand, allowing all of them to discharge parental responsibility without the typical disputes over maternity that may arise.[27]
It is within this framework that the rights and duties (and disputes) emanating from a parent-child relationship – presently, the right of succession – shall be discussed.
Locating the Law of Succession in a Care-Based Framework
Notwithstanding a move towards ‘care-based’ parent-child relationships, the integration of succession of property and inheritance law into the care-based framework is still inadvisable. The law of succession spans an intricate network of personal laws and kinships to distribute property among the heirs of a deceased intestate. For the same to operate in a care-based framework, the ‘parenthood’ dimension of a parent-child relationship – and not parentage or parental responsibility – should be the most pertinent point of reference. The reasons to support this choice have been summarised hereunder.
First, the proposition to limit succession to legal parenthood can be accommodated within the existing legislative framework spanning a number of personal laws. To the extent that natal parentage culminates in legal parenthood, the proposition would make no difference; further, since adopted kids are treated as natural heirs at the time of succession,[28] it is already clear that the legal dimension of parenthood determines succession over natal parentage. It may be possible as a matter of policy to allow children to inherit the property of their natal parents even when the latter do not have a parenthood relationship with the former, for the limited purpose of preventing the reversion of property to the State.[29] However, for all other intents and purposes the distinction between parentage and parenthood should be observed – privileging the latter at the time of succession.
Second, compared to parenthood, succession along the dimension of social parental responsibility may be undesirable for the parent autonomously discharging this responsibility sans parenthood. In the aforementioned care-based framework, a degree of autonomy is envisaged for a would-be-parent to choose to discharge parental responsibility with or without the legal label of parenthood. In the event that an individual discharges parental responsibility but opts out of legal parenthood – either by never applying to be a formal parent or by rejecting such an option flowing out of their parentage (say, towards a child born out of wedlock or a child given up for adoption) – a rebuttable presumption may lie against ‘parenthood’ to suggest that the individual did not want to formalise their relationship with the child – even if they assume some parental responsibility towards the child.
With no prejudice to the above, it is also argued that succession in a parent-child relationship founded on the discharge of parental responsibility alone would be undeniably vague. Since the dimension of parental responsibility is a social dimension – the determinants thereof will also be the concomitance between a number of social markers such as custody, period of cohabitation, involvement in day-to-day activities, education, nutrition, financial well-being, etc.[30] In such a situation, there are two ways that a parent-child relationship becomes indeterminate for the purpose of succession: first, there is no indicative threshold to determine whether one parent in this situation is an equal parent[31] as the others considering the difference in the character and significance of the functions performed by different individuals discharging parental responsibility;[32] and, second, there is no way to determine if the child is an equal child for the deceased who may only be discharging parental responsibilities for one child but be engaged in ‘parenthood’ for another – having chosen to formalise the relationship in the latter case.
In other words, by making succession contingent on the dimension of ‘parenthood’ – the law can be more certain and determinable as regards the legal parents, whilst also being respectful of the individual autonomy of caregivers who do not take up that label even as they discharge parental responsibility. The rebuttable presumption against parenthood qua differently placed caregivers discharging parental responsibility without a formal label to this effect – effectively demonstrates how succession law in a care-based relationship should be tied to ‘parenthood’ alone.
In Lieu of a Conclusion: Limitations of the Care-Based Model
Succession in care-based relationships is an imperfect system: evidently, it suffers from ambiguity over the ‘best interest of the child’ and the subjective parental understanding thereof, which may not be identical across the board. However, the pitfalls of the proposed succession law in a care-based context, insofar as it arises from the conflict of personal laws, competing claimants at differing degrees of propinquity[33] or the inconsistencies in the application of the law by Courts – are not imputable to the care-based model of parent-child relationships: these issues emanate from an established tradition of succession law and jurisprudence. Mutatis mutandis the recognition of some informal social relationships as resembling parent-child relationships founded on parental responsibility, disputes should continue to be resolved as before..
The modest burdens that this post discharges are the conceptualisation of parent-child relationships with ‘care’ as the unit of association rather than heredity, and the reconciliation thereof with the law of intestate succession as it exists. Admittedly, the recognition of care-based relationships would increase the number of stakeholders when a decision needs to be made in fulfilment of a ‘parental responsibility’. Yet, the pool of options to choose from remains the stark yes/no binary.[34] Such disputes can continue to be resolved amicably among co-parents, and be treated us non-justiciable by the court insofar as they do not violate public policy (viz. the ‘best interest of the child’).[35] To this end, there is no change in how a family functions or when the intervention of the law is warranted.
However, with no prejudice to the foregoing analysis and arguments, it needs to be reiterated that the relationship between the parent and the child is the primary interest for a care-based model: the property rights flowing therefrom are only accessory to the former primary rights that the State is interested in. Insofar as child rights are outgrowths of child needs,[36] it would be counterintuitive for a model geared towards the satisfaction of these needs to accommodate the enterprising and accumulative character of property which is the subject of succession law. The transfer of an estate and generational wealth is not a ‘need’ within the child rights/child needs framework; only a reasonable standard of maintenance and other amenities meet the threshold of a ‘need’. Even as a care-based family law becomes more popular, so long as proprietary considerations inform ‘care’ – the law would be forced to formally define and codify what a ‘family’ is, defeating the underlying purpose of a dynamic ‘care-based’ framework. While this post makes room for the coexistence of succession law and care-based family law, the only wholly successful reconciliation of these antithetical interests is a framework where they are mutually disjoint. It is in service of this ulterior principle, that the post limits succession law (and its need for certainty) to the legal dimension of ‘parenthood’ – away from the dynamic social dimension of parental responsibility.
The author, Sarthak Wadhwa, is an undergraduate law student at the National Law School of India University (NLSIU), Bangalore.
[1] Martha Fineman, Masking Dependency: The Political Role of Family Rhetoric, 81 Virginia L.Rev. 2181, 2190-91(1995)
[2] Sarthak Wadhwa,The ‘Right’ to be in a Live-In Relationship,Law School Policy Review,30 October 2020 available at lawschoolpolicyreview.com/2020/10/30/the-right-to-be-in-a-live-in-relationship/
[3] Mohabbat Ali Khan v. Md. Ibrahim Khan,1929 SCC OnLine PC 21: (1928-29) 33 CWN 645, at 650 (commanding case on the intersection of concubinage, marriage, parenthood and heredity – it later informed the doctrinal evolution of the judicial treatment of live-in relationships)
[4]The Indian Penal Code, 1860, §350-355
[5]The Protection of Women from Domestic Violence Act, 2005, §18-22; The Code of Criminal Procedure, 1974, §125
[6]The Juvenile Justice (Care and Protection of Children) Act, 2015, §2(2)
[7]The Protection of Women from Domestic Violence Act, 2005, §2(f); Vimala v.Veeraswamy,(1991) 2 SCC 375, ¶3,¶9;Dr Justice V.S. Malimath Committee, Report of the Committee on Reforms of Criminal Justice System, ¶16.1.1 (2003)
[8] Jonathan Herring, Family Law and the Relational Self in Law and the Relational Self 145 (2019)
[9]Indra Sarma v. V.K.V Sarma, (2013) 15 SCC 755, at ¶57-59 (on account of her knowledge of the man’s subsisting marriage, the petitioner’s claim to be in a relationship in the nature of marriage with the respondent was negatived by the court to label her a concubine and deny her any relief on account of her illegitimate relationship)
[10]Revanasiddappa v. Mallikarjun, (2011) 11 SCC 1, ¶26, ¶34 (illegitimate children are not considered a part of the larger family unit, they may receive some benefits from their parents but beyond that they may not be entitled to benefits from other relatives)
[11]Supra note 10 at146
[12] Shreya Jaipuria, Parenthood and a Child’s Right to Knowledge of Genetic Origins,The Journal of Indian Law and Society Blog, 11 April 2021 available atjilsnujs.wordpress.com/2021/04/11/parenthood-and-a-childs-right-to-knowledge-of-genetic-origins
[13]Incidentally, familial relationships between individuals is relevant here for the determination of a Hindu Undivided Family (HUF) for income tax thereupon [The Income Tax Act, 1961, §2(31)] and for the exemption of gift tax [The Gift Tax Act, 1958, §5(1)(vii)]
[14]The Juvenile Justice (Care and Protection of Children) Act, 2015, §2(2), §63; The Hindu Adoption and Maintenance Act, 1956, §12; The Maintenance and Welfare of Parents and Senior Citizens Act, 2007, §2(d), §4
[15]Id. (legal responsibilities subsist inter se adopted children and adoptive parents, rather than biological parents)
[16] Andrew Bainham, Parentage, Parenthood and Parental Responsibility: Subtle, Elusive, Yet Important Distinctions in Andrew Bainham et al (eds.), What is a Parent? A Socio-Legal Analysis25-46 (1999)
[17]R v. Secretary of State for Education and Employment ex parte Williamson, [2005] UKHL 15, at 72
[18]Gillick v. West Norfolk Area Health Authority, [1985] 3 WLR 830
[19] The Juvenile Justice (Care and Protection of Children) Act, 2015, §3(v) (parental responsibility is a familial obligation to care for, nurture and protect the child); c.f. Children Act, 1989, §3 (U.K.) (‘parental responsibility’ includes all legal duties and responsibilities in relation to the child and the child’s estate)
[20] Carl Schneider, Discretion, Rules and Law: Child Custody and the UMDA’s Best-Interest Standard, 89 Michigan L. R. 2215(1989); Santosky v. Kramer, (1982) 455 U.S. § 745 (grounds for denial of parenthood)
[21] United Nations Convention on the Rights of the Child, G.A. Res. 44/25, Article 12, (20 November 1989)
[22] Martha Fineman, Why Marriage?, 9(1) Virginia Journal of Social Policy and the Law 240, 245 (2001)
[23] Barbara Woodhouse, Hatching the Egg: A Child-Centred Perspective on Parents’ Rights,14 Cardozo Law Review 1747(1993)
[24] Jens M. Scherpe, Breaking the Existing Paradigms of Parent-Child Relationships in G. Douglas et al. (eds.) International and National Perspectives on Child and Family Law: Essays in Honor of Nigel Lowe 356 (2018)
[25] Anayo v. Germany, [2010] ECHR 2083
[26] All Families Are Equal (Parentage & Related Registrations Statute Law Amendment) Act 2016, §9, §10(3) (Canada)
[27] ibid §5; See alsoChristine Laviolette, Robyn Grant, Impact of the All Families are Equal Act, 2016 for Surrogate Births, Lexology, 26 March 2018 <www.lexology.com/library/detail.aspx?g=ca52650b-f1af-4c6e-86ec-770fa1e9b181>
[28]Supra note 16
[29] Patrick Parkinson, Violence Abuse and Postseparation Parenting in Family Law and the Indissolubility of Parenthood 121 (2011)
[30]The Juvenile Justice (Care and Protection of Children) Act, 2015, §3(v)
[31]In a ‘melancholy succession’ – where a child predeceases a parent – the parents may inherit the child’s estate and it may be relevant to identify who the child’s parents are for this purpose; while deceased may have several people discharging parental responsibility towards them, they may have only a limited number of legally recognised parents. The post argues that succession should take place along this latter dimension of legal parenthood.
[32] Benjamin Garber, Part III: In the Best Developmental Interests of the Child: Topics in Separation, Visitation, and Reunification in Developmental Psychology for Family Law Professionals: Theory, Application, and the Best Interests of the Child 218 (2010)
[33]Propinquity means proximity in kinship – it becomes relevant during succession since relatives who are closer to an individual are generally given a larger share during intestate succession: children and parents are at the same degree of propinquity (lineal ascendants or descendants), siblings are at a nearer degree of propinquity than uncles-aunts or any other first-cousins.
[34]Supra note 27 at 358
[35]Patrick Parkinson, Redefining Parenthood After Separationin Family Law and the Indissolubility of Parenthood 57(2011);Children Act 1989, §31 (U.K.) (provides a comprehensive legislative framework for the determination of a child’s best interests by a Court)
[36] Barbara Woodhouse, ‘Out of Children’s Needs, Children’s Rights’: The Child’s Voice in Defining the Family, 8(2) Brigham Young University J. of Public Law 321, 325(1994)
The Journal of Indian Law and Society 