'Refusing Paternity Leave To Father Violates Child's Right To Life U/Article 21': Madras HC, Says India Needs A Law On This Subject

Granting relief to a State Police officer against whom a 'desertion' order was passed by his department on account of his absence from service (as he had to take care of his wife who was expecting a child), the Madras High Court has emphasised the need for paternity leave legislation in India.

Highlighting the importance of the role of both, a father and a mother during the prenatal care and post-natal care days of a child, the Court observed that because of the challenges of nuclear families, it is high time for the policymakers to "recognise the right to paternity leave/parental leave" to the biological/adoptive parents as the basic human right of the respective prenatal/post natal child. 

A bench comprising Justice L. Victoria Gowri observed thus while holding that the right to protection of life guaranteed to every child by Articles 21 and 15(3) of the Constitution of India "culminates" in the fundamental human right of the biological parents/adopting parents seeking maternity/paternity/parental leave.

Importantly, the Court also said that though paternity/paternal leave is a kind of labour law benefit, the same has "stemmed" from the right of a child to be protected under Articles 14, 15(3) and 21 of the Constitution of India.

"A welfare state is at the bounden duty to provide the foetus with dignified pre-natal care and the child with proper health care, hygiene and sanitation in the post-natal care days. Perhaps grant of maternity/paternity leave to the biological parents and paternal leave to the adoptive parents is to ensure proper pre-natal/post-natal care, upholding the child’s right to protection of life as guaranteed under Article 21," the bench observed. 

With this, the Court held that the refusal of the Police Department to cancel and refuse paternity leave to the petitioner would amount to a "violation" of right to life of the child guaranteed under Article 21 of the Constitution of India.

The matter in brief

Essentially, the petitioner's wife got conceived through the In Vitro Fertilization (IVF) method and therefore, the petitioner gave a leave letter to the SP Concerned seeking paternity leave from May 1, 2023, to July 29, 2023, for a period of 90 days.

Though the leave was granted on April 25, 2023, the same was cancelled on April 30 citing the law and order problem prevailing in the locality of the Police Station. 

Thereafter, since the expected date of delivery was May 30, the petitioner submitted a representation on May 16 to the Deputy Inspector General of Police seeking to extend his Unearned Leave on private affairs for a period from May 1 to June 15. The leave was allowed for a period of 30 days (from May 1 to May 30).

However, his wife gave birth to the child only on May 31 as a result of which, the petitioner was not able to report for duty on May 31, however, he sent a WhatsApp message to the concerned SP stating that due to the critical condition of his wife, he was not able to reach in person and submit an application seeking extension of leave.

Now on June 22, he received the 'desertion' order directing him to appear before the Deputy Inspector General of Police, Tirunelveli Circle within 60 days to submit his explanation for failure to report on May 31 and for 'Absence without leave' from service.

Challenging the desertion order, the petitioner moved a writ plea before the High Court.

High Court's observations

At the outset, the Court opined that considering the unusual nature of the case, where a "dutiful husband" sought paternity leave only for the purpose of taking care of his pregnant wife at the time of complicated delivery procedure by IVF treatment, the competent authority "ought" to have granted leave as sought by him in his application from May 1 to June 15. 

Further, referring to the Fundamental Rights and Directive Principles of State Police contained under the Constitution of India which recognise the significance of child welfare, protection and development, the Court said that such development of a child "commences from the pre-natal care days, that is from the day one of the mother’s pregnancy and continues all along the post natal care days, till the age of attaining majority".

In this regard, emphasising the need to provide for maternity/paternity/parental leave to the adoptive/biological parents, the Court said that the same would ensure proper pre-natal/post-natal care, upholding the child’s right to protection of life as guaranteed under Article 21 of the Constitution of India.

"The petitioner’s child’s right to live, survive, health and development of childhood which flows from Article 21 of the Constitution of India, guarantees the petitioner’s right to seek paternity leave to attend his wife’s delivery," the Court further said.

In its order, the Court also noted that since IVF s a high-risk pregnancy procedure, a woman undergoing IVF procedure needs complete attention and wholistic care for a risk-free delivery, and hence, in the instant case, the petitioner was compelled to give special care to his pregnant wife at that point of time.

Consequently, finding justification in the absence of the petitioner from his service, the Court quashed the 'desertion' order. The Court order thus while "gracefully" considering his IVF child’s right to life and protection of life as guaranteed under Article 21 of the Constitution of India.

The Court further directed the Deputy Inspector General of Police to re-visit the impugned order, thereby, extending the time (of 60 days) given to the petitioner to submit an explanation for his unauthorized absence during the period from May 31 to July 29, for another period of 15 days.

"The first respondent is also directed to consider the case of the petitioner with a considerate mind and pass appropriate orders reinstating the petitioner, as Inspector of Police, Kadayam Police Station, Tenkasi District, within a period of four weeks", the Court further ordered. 

Case title - B. Saravanan vs. The Deputy Inspector General of Police, Tirunelveli Region, Tirunelveli and others

Case Citation: 2023 LiveLaw (Mad) 235

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