Denial Of Maternity Benefits To Mothers Adopting Children Aged Less Than 3 Months Challenged In Supreme Court

The Supreme Court today has issued notice in a public interest litigation challenging the constitutionality of section 5(4) of the Maternity Benefit (Amendment) Act, 2017 ("impugned provision") which entitles maternity period benefits for a period of 12 weeks to only those mothers who are adopting a child below the age of three months.

A bench of Justices S Abdul Nazeer and Krishna Murari issued notice to the Union Government after stating that the petitioner (Hamsaanandini Nanduri) had a "just cause".

The petitioner argued that the impugned provision was contrary not only to the scheme and object of the Maternity Benefit Act and in particular the 2017 amendment but also in conflict with the letter and spirit of the Juvenile Justice Care and Protection of Children Act, 2015 ("JJ Act") in as much as the provision did not take into consideration the procedure of adoption envisaged in the JJ Act and the Regulations framed thereunder.

"Even strictly adhering to JJ Act, the process of adoption, which requires that any orphaned, abandoned or surrendered child be declared "legally free for adoption" by the Child Welfare Committee under the JJ Act, followed by the procedure of adoption, cannot be completed in a meagre span of three months, referred to in Section 5(4) of the Maternity Benefit Act. In addition, thereto, the Adoption Regulations envisages a minimum duration of two months for a child to be declared "legally free for adoption" in accordance with law. Inevitably, such processes and procedures are fraught with delays," the petition stated.

The petitioners have also averred that even assuming the child is orphaned, abandoned or surrendered at birth it is almost impossible for a mother to adopt an orphaned, abandoned or surrendered child who is less than 3 months of age.

It has also been contended that absence of provision for any maternity leave at all for a mother adopting an orphaned, abandoned or surrendered child above the age of three months invariable disentitles/disallows most women/mothers from being able to enjoy the statutory maternity benefits of three months that Maternity Benefit (Amendment) Act 2017) intents to grant to adopting mothers.

"By making Section 5(4) conditional on the age of the adoptive child, the state is inconsiderately promoting the adoption of only new born children and not older/adolescent orphaned, abandoned or surrendered children. 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 JJ Act," petition also stated.

To aver that section 5(4) is otiose, nugatory and nothing but a paper benefit, the petitioner contended that not all children who are available for adoption are orphaned, abandoned or surrendered are new born.

"Section 5(4) not only discriminates against adoptive mothers, but it is also prima facie arbitrary, artificial and evasive, and has no nexus with the aims and objects that the legislation seeks to achieve, which includes amongst others, equality of all women and mothers in the workforce. It suffers from non-application of mind, in as much as it does not take into the consideration the procedure for adoption under the law for the time being in force, further deepening the discrimination that exist between biological and adoptive mothers," petitioners contended to substantiate their contention.

Nanduri in her petition had also averred that by granting only "conditional" maternity benefits, the applicability of which was not feasible as per the law relating to the procedure for adoption, Section 5(4) violated the adoptive mother's freedom to enjoy under the Constitution of India.

Case Title: Hamsaanandini Nanduri v. Union of India| WP(C) 960/2021

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