Now all mothers adopting a child will be able to get maternity leave. The Supreme Court has repealed the legal provision under which leave was available only on adoption of a child up to 3 months of age. The court has considered this as a violation of the right to equality (Article 14 of the Constitution). The court has also said that motherhood is a fundamental human right. It cannot be limited in this way.
The bench of Justice JB Pardiwala and Justice R Mahadevan has discussed the rights of the adopted child in its decision. He has said that it is the child’s right to receive mother’s affection. It takes time for him to connect with his new family. Under Article 21 of the Constitution, children and parents have the right to a dignified life, but this law violates that too.
The petitioner named Hansandini Nanduri had originally challenged the constitutional validity of Section 5(4) of the Maternity Benefit Act 1961. During the hearing, the Supreme Court was told that the Social Security Code implemented in 2020 has replaced the 1961 law. The same thing is written in its Section 60(4) as was written in Section 5(4) of the 1961 Act.
Section 60(4) of the Social Security Code of 2020 provides for a maximum of 12 weeks of maternity leave for women adopting a child, but this benefit is only for those women who have adopted a child less than 3 months of age. This section has been canceled by the Supreme Court, declaring it unconstitutional.
The petitioner said that it is necessary to make the adopted child comfortable in the new environment. All women who adopt should be given unconditional maternity leave to develop the bond between the child and the mother. The court has accepted this argument. Judges have acknowledged that family and motherhood do not depend solely on biological factors. It is related to emotions.
It was also argued in the court that there is a provision to give maternity leave of up to 26 weeks to women who give birth to a child on their own. The judges have said that the law differentiates between biological mother (becoming a mother naturally) and adoptive mother (becoming a mother by adopting a child). The court does not want to go into this, but the condition that a woman adopting a child will get 12 weeks leave is wrong only if the age of the adopted child is less than 3 months. The court has also said that the government should also consider giving paternity leave to men who adopt a child.
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