Can't Be Compelled To Choose Between Motherhood & Employment: Kerala HC Directs State To Adopt Compassionate Approach Towards Transfer Of Single Mothers

The Division Bench comprising Justice A. Muhammad Mustaque and Justice Shoba Annamma Eapen observed that the rights of children who were affected by transfers of single parent or mother were dealt insensitively these days.

“State authorities concerned are bound to deal with the situation in a compassionate manner so as to respect the rights of not only the employee concerned but also that of the child in question in a case like this. If that be so, there may not be any necessity for the court to always urge or admonish the State authorities to behave in a proportionate and reasonable manner in matters affecting fundamental rights and it may be better in the interest of things that the State authorities themselves proactively adopt a compassionate perspective in a case of this nature."

Background

The court was dealing with the case of an eleven-year-old child, and her single mother who was a trained Graduate Teacher, working at Kendriya Vidyalaya, Kochi. The mother had approached the Central Administrative Tribunal against her transfer to Kendriya Vidyalaya, Agartala in Tripura due to promotion which was about 2200 km away from Kochi.

It was submitted that her application was disposed of with a direction to the authorities to consider the matter afresh to see if she could be given a posting in Kerala or other neighbouring states. Aggrieved by the order, the Union Government and Kendriya Vidyalaya Sangathan approached the Kerala High Court.

The applicant got divorced in the year 2018 by mutual consent and had a child aged 11 years old. The applicant submitted that being a single mother she had to take care of the minor child alone. It was stated that if the applicant was transferred to a faraway place, the father who had visitorial rights to the child would not be able to meet the child either.

The Central Government Counsel submitted that the grievance of the applicant cannot be considered sympathetically since the interest of the organization has to be given priority over individual rights.

Fundamental Right Of Child To Get Love And Affection From Both Parents

The Court stated that if the applicant was moved to a far-off place, it would affect the compromise decree drawn between the applicant and her husband regarding the visitation rights over their minor child.

It stated that the child has a fundamental right guaranteed under Article 21 of the Constitution to receive love and affection from both parents. “The matter also has to be looked into from the point of view of the young child, who certainly has the right to life guaranteed under Article 21 of the Constitution of India, which also includes the right to family life, inclusive of the right to get love and affection of both his parents”, stated the Court.

It added that state authorities have a responsibility to protect the fundamental rights of a child since childhood requires special care and attention from both parents. In the facts of the case, the Court stated that transfer to a far-off place would seriously affect the visitation rights of the father and the state has a responsibility to make a decision which would be least injurious to the right to life of a child.

Mother Cannot Be Compelled To Choose Between Motherhood And Employment

The Court then elucidated the struggles of a single working mother. It stated that single mothers would face challenges since they have to fulfil the roles of two parents as a sole person and they often play multiple roles. It stated that single mothers have to show extraordinary strength in balancing work, household responsibilities and nurturing of their children and thus having a support system, time management and resilience is imperative.

The Court also stated that the respondents cannot say that the applicant has forfeited her right to promotion since she did not join her original place of posting.

The Court thus found that the order of the Tribunal directing the respondents to consider the matter afresh and consider the posting of the applicant to anywhere in Kerala or to a neighbouring state does not warrant interference.

Accordingly, the petition was disposed of.

Counsel for Petitioners (Respondents in OA): Central Government Counsel T V Vinu

Counsel for Respondent (Applicant in OA): Advocate T N Sreekala

Citation: 2024 LiveLaw (Ker) 158

Case title: The Commissioner V Nithya R Warriar

Case number: OP (CAT) No. 47/2023

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