The Supreme Court on Tuesday struck down a section of the 2020 Social Security Code that allowed maternity leaves for adoptive mothers to only those adopting children under three months old, PTI reported.
The court observed that adoption is part of the right to reproductive autonomy.
A bench of Justices JB Pardiwala and R Mahadevan said that an adoptive mother should be entitled to maternity leave for a 12-week period despite the age of the adopted child.
The court said that a restriction of maternity leave under Section 60(4) of the Code for adoptive mothers who adopt children over three months old violated their right to equality as their role is similar to that of mothers who adopt children below three months, Bar and Bench reported.
The bench added that the section also violates Article 21 of the Constitution, which guarantees the right to protection of life and personal liberty, PTI reported.
The order came on a 2021 petition by advocate Hamsaanandini Nanduri originally challenging Section 5(4) of the 1961 Maternity Benefit Act, Live Law reported. The provision, which was introduced through a 2017 amendment, granted 12 weeks of maternity benefit to adoptive mothers only when the adopted child is below three months of age.
The petitioner argued that the age-based restriction was arbitrary and violated Article 14, Article 19(1)(g) and Article 21, Bar and Bench reported. Article 14 guarantees the right to equality and Article 19(1)(g) provides the right to practice any profession, occupation, trade or business.
The provision in the Maternity Benefit Act created an artificial classification between adoptive children based solely on age, the petitioner said, adding that it also failed to account for the realities of India’s adoption framework under the Juvenile Justice Act and Adoption Regulations.
The matter was initially reserved for judgement on December 12, Bar and Bench reported.
However, as the Social Security Code, which repealed the Maternity Benefit Act, had come into effect in November, the court permitted the petitioner to challenge Section 60(4) of the code. Section 60(4) is the corresponding provision to Section 5(4) of the Maternity Benefit Act.
In its order on Tuesday, the court said that the distinction drawn under Section 60(4) did not “have a rational nexus” with the object of the Social Security Code, Bar and Bench reported.
The order said that the object of maternity benefit is not associated with the “process of childbirth but with the process of motherhood”. The purpose of maternity protection does not vary with the manner in which the child is brought into the life of the beneficiary mother, it added.
“Insofar as the roles, responsibilities, and caregiving obligations are concerned, women who adopt a child aged three months or above are similarly situated to women who adopt a child below the age of three months,” Bar and Bench quoted the court as saying in its order.
The court also noted that the needs of an adoptive child is no different from a child born to the mother.
While striking down the section, the court urged the Union government to come out with a provision recognising paternity leave as a social security benefit, PTI reported.
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