There is no provision for maternity leave for a mother adopting an orphaned, abandoned, or surrendered child above the age of three months.
Tripti Bhushan, Academic Tutor & TRIP Fellow, Jindal Global Law School, O.P. Jindal University, Sonipat, Haryana, India.
Section 5(4) of the Maternity Benefit (Amendment) Act 2017 (India) states that a woman can avail maternity leave only if she adopts a child who is less than three months old. In a recent petition, Hamsaanandini Nanduri V. Union of India (Writ Petition(s)(Civil) No(s). 960/2021), the petitioner, Hamsaanandini Nanduri, challenged the constitutional validity of section 5(4).
A bench of Justice S Abdul Nazeer and Justice Krishna Murari of the Supreme Court sought a response from the Central government on the plea that this provision is “discriminatory and arbitrary” towards adoptive mothers.
A number of objections were raised. The petition argues that the arrangement violates Article 19 (1) (g) of the Indian Constitution because it restricts the adoptive mother’s ability to carry on her exchange, employment, and business based on the child’s age. The Act also discriminates between biological and adoptive mothers.
The adoptive mother gets 12 weeks of maternity benefit, while biological mothers get 26 weeks. Moreover, the Act discriminates amongst adopted children. There is no provision for maternity leave for a mother adopting an orphaned, abandoned, or surrendered child above the age of three months.
Such distinction, the petition pointed out, will lead to parents preferring to adopt new born children as against older children.The petitioner also claimed that the Maternity Benefit Act’s provision was incompatible with the Juvenile Justice Act and adoption laws.
It needs to be highlighted that any exception to equality is permissible only if the State has justifiable reasons for treating people differently. The validity of state action thus depends on an evaluation of the reasons behind state action. This is the essential link between equality and rationality in Article 14.
Published in: Oxford Human Rights Hub
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