Centre asked to justify denial of maternity leave for women adopting children above 3 months

The Supreme Court has asked the Centre to explain the rationale behind a provision that denies maternity leave benefits to those women who adopt a child above the age of three months.

The top court was hearing a plea challenging the constitutional validity of a provision of the Maternity Benefit Act, 1961, which entitles only those women who are adopting a child below the age of three months to seek benefits of 12-week maternity leave.

The petitioner’s case was that the provision was a social welfare legislation and there was no reasonable classification when it restricted the age of infant up to three months, a bench led by Justice JB Pardiwala said in its November 12 order.

“In other words, if a woman adopts a child above the age of three months, she will not be entitled to any such maternity leave benefit as provided under the Amendment Act,” it said.

Dissatisfied with the Centre defending the existing provision, the top court said, “…we expect the Union of India to file a further reply on the issue discussed today, more particularly, as to what is the rationale in saying that it is only that woman who adopts a child below the age of three months would be entitled to seek maternity leave benefits otherwise not.”

Directing the Centre to file its reply in three weeks, the bench said a copy of the reply to be filed be served to the counsel for the petitioner well in advance and posted the matter for final disposal on December 17.

In October 2021, the top court had sought response from the Centre on the plea which claimed section 5(4) of the Maternity Benefit Act, 1961, was discriminatory and arbitrary.

“Section 5(4) apart from being discriminatory and arbitrary towards the adoptive mothers, also arbitrarily discriminates against orphaned, abandoned or surrendered children above the age of three months, which is completely incompatible to the object of the Maternity Benefit Act as well as the Juvenile Justice Act,” the plea said.

The purported 12 weeks of maternity benefit to adoptive mothers was not only a “mere lip service but when juxtaposed with the maternity benefit of 26 weeks provided to biological mothers, fails to stand even the basic scrutiny of Part III of the Constitution which is wedded to the concept of non-arbitrariness,” petitioner submitted.