Introduction:

The Maternity Benefit Act, 1961 (“MB Act”) in India ensures the right to 26 weeks of paid maternity leave for women expecting their first two children, and for 12 weeks of leave for mothers who already have two surviving children. Based on this statute, many employers have drafted their maternity benefit policies, especially the state/government-owned institutions. The Hon'ble Supreme Court ("SC") of India recently in K. Umadevi Vs. State of Tamil Nadu and Ors. considered an interesting question regarding the maternity leave entitlement. Specifically, the SC addressed whether a woman with two surviving children from a previous marriage is entitled to maternity leave for a third child born from a second marriage after joining the employment.

Brief Facts:

Umadevi (“Employee”) was married in 2006, from this wedlock two children were born. Thereafter, she entered into service with the State of Tamil Nadu (“Employer”) as a teacher in 2012. In the year 2017 her marriage was dissolved and the custody of the two children remained with their father.

In 2018 the Employee remarried, and due to conceivement from this wedlock, she applied for maternity leave of nine months with the Employer. The Employer rejected her application for maternity leave, citing that the applicable Fundamental Rule to state government employees (“Rules”) provides maternity leave to a woman employee, having less than 2 surviving children, and there is no provision for maternity leave for a third child on account of remarriage.

Aggrieved by the rejection of her maternity leave, the Employee reached out to the Hon’ble Madras High Court (“HC”). The single judge bench of the Hon’ble HC held that the Employee is entitled to maternity benefits, and set aside the order by the Employer. The Employer preferred an intra-court appeal against this decision before a two-judge bench (“Division Bench”). The Division Bench set aside the order of the single bench while holding that the Employee is not eligible for the maternity leave, under the applicable Rules. It is this order of the Division Bench (“Impugned Order”) against which the Employee has reached out to the Hon’ble SC.

Arguments by the Parties:

The Employee argued that the child born out of the second wedlock, is her first child after joining the services of the Employer. She further argued that the right to have maternity leave is a facet of the reproductive rights of a woman, which is traceable to Article 21 of the Indian Constitution.

On the other hand, the employer argued that their maternity policy is subject to fiscal limitations, and extending maternity benefits to women having more than two surviving children would create precedents that could potentially overwhelm the exchequer and impact administrative efficiency.  The Employer further cited Rule 101 of the applicable Rule, which bars grant of maternity benefit beyond the second child.

Observation of the Hon’ble SC:

The Hon’ble SC Deliberated on the order of the single bench wherein it was observed that the Rule 101 providing cap on the number of children for entitlement of maternity benefit is repugnant to the MB Act which is a central legislation, and that the provisions of the MB Act have overriding effect on any other law inconsistent with it. Also, it was held by the single bench that the term ‘two surviving children’ must mean children in lawful custody of the mother.

In the intra-court appeal the Division Bench noted that the applicable Rule restricts the maternity benefit to two children, and therefore the Employee is not eligible for the maternity leave for the third child. Further, it also observed that maternity leave is not a fundamental right but is a statutory right or a right which flows from the conditions of service.

It is in this background the Hon’ble SC examined the Impugned Order. The Hon’ble SC held that there is no cap or ceiling on the number of children to claim maternity benefit under the MB Act. The only difference is that for a woman with two surviving children the statutory maternity leave is reduced from 26 weeks to 12 weeks. Further the Section 27 of the MB Act provides that in case of any inconsistency between any law, agreement, or award and the provisions of the MB Act, the provisions of the MB Act shall prevail.  

Further, the Hon’ble SC discussed the judgment in Suchita Srivastava vs. Chandigarh Administration[1], wherein it was held that right of a woman to make reproductive choice is a facet of Article 21 of the Constitution. Similar observations were also made by the Hon’ble SC in Devika Biswas vs. Union of India[2].

Applying the above observations to the present factual matrix, the Hon’ble SC concluded that though the Employee has two biological children out of her first wedlock, but that was before her entering into the services. Post entering into services, this is her first child, and therefore she is entitled for maternity leave. Consequently, the SC set aside the Impugned Order, and declared that the Employee be granted maternity leave under the applicable rules.

Key Takeaways for Employers:

  • The Employer may not cap the number of children for the grant of maternity leave. However, the period of maternity leave for the third child may be reduced but again it shall not be below 12 months.
  • Even though the provisions of the MB Act are not applicable to the government sector, still, the government institutions should align their maternity policy with the MB Act.
  • The Hon’ble SC favoured a purposive and liberal interpretation of beneficial legislation like the MB Act, and employers should also adopt a similar approach, focusing on the intent behind the law rather than a narrow, literal reading.

[1] (2009) 9 SCC 1

[2] (2016) 10 SCC 726

Authors:

Gyanendra Mishra, Partner

Maruti Nandan, Associate

Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.