Third Pregnancy Penalty: Madras High Court Strikes Down Tamil Nadu's Discriminatory Maternity Leave Order

On April 28, 2026, a Division Bench of the Madras High Court, comprising Justices R. Suresh Kumar and Justice N. Senthilkumar, delivered a significant order in the case of Shayee Nisha v. Principal District Judge, Villupuram & Ors (W.P.No.16245 of 2026),. The Court set aside a Government Order (G.O. Ms. No. 18) dated March 13, 2026, issued by the Tamil Nadu Human Resource Management Department (TNHRMD), which restricted maternity leave for a third pregnancy to only 12 weeks.

The petitioner, Shayee Nisha, a judicial employee in Villupuram District, had applied for maternity leave on February 2, 2026, but was refused by the Principal District Judge on the basis of government order of TNHRMD. The High Court quashed the decision and directed that she should be granted maternity leave on par with that admissible for first and second pregnancies, finding that the government order was inconsistent with the law.

Beyond the fact of the case, the decision brings a sharp focus on a long-standing issue: Two-child norms, which are embedded in state service rules, have quietly punished women government employees for reproductive choices that the Parliament and the Constitution don't permit the state to punish.

The Statutory Framework: What The Parliament Actually Provides

Under Section 5(3) of the Maternity Benefit (Amendment) Act, 2017, a woman is entitled to 26 weeks of paid maternity leave for her first and second child and 12 weeks for her third or subsequent child. Parliament took the conscious choice to make that distinction. The Tamil Nadu government did something else: it attempted to impose this 12-week clause on its employees through an executive government order, to turn that time limit into a bureaucratic denial of the full entitlement, without any justification.

This is important from a constitutional perspective because Labour is a Concurrent List subject. The Maternity Benefit Act is the key legislation governing these benefits and was enacted by Parliament. Any state executive order that conflicts with the central enactment is null and void to the extent of repugnancy, according to Article 254(1) of the Indian Constitution. The Tamil Nadu Government Order was not filling a statutory void; rather, it was reducing a benefit that Parliament had specifically calculated. The Madras High Court was right in refusing to uphold the government order.

The Constitutional Dimension: Articles 14, 21, And 42

Maternity leave is a constitutional right, not a concession. In Municipal Corporation of Delhi v. Female Workers (Muster Roll) 2000 INSC 129, the Supreme Court ruled that maternity benefits are an inherent component of social justice, stemming from Article 21's provision of a dignified life. Article 42 of the constitution further obliged the state to provide maternity relief as part of the just and humane working conditions.

The Supreme Court has repeatedly held that the right to reproductive autonomy —including the right to make choices about the number of one's children without suffering an employment penalty for doing so is a recognized facet of the right to life under Article 21. A government order that reduces the maternity benefit to half for a third pregnancy, on a blanket basis without regard to circumstances, also raises a serious question under Article 14: what is the reasonable relationship between the classification (third pregnancy) and the purpose of the restriction (population control) when the woman has already conceived and is entitled to the protection of law?

The most relevant precedent is the Supreme Court's September 2025 decision in K. Umadevi v. Government of Tamil Nadu 2025 INSC 781, which concluded that maternity benefits are an aspect of reproductive rights under Article 21 and that the twin objectives of population control and maternity benefits are not incompatible —they must be harmoniously construed with a view to their purpose. The Madras High Court explicitly relied on this precedent in setting aside the March 13 Government Order. The state government, it pointed out, had issued the Government Order in relation to the Umadevi line of cases but had come to a different conclusion that was inconsistent with their clear holding.

The Two-Child Norm: A Policy Due For Re-Examination

The two-child norm traces its origin to a 1997 Tamil Nadu Government Order issued in response to the 1993 Central Government circular on population policy. It has been incorporated into several state service rules and has been litigated on many occasions. The courts have, in various contexts, questioned its constitutionality —especially when it is invoked to deny employment rights, or prevent someone from holding public office without a reasonable justification.

Demographically, the justification has weakened significantly. The Total Fertility Rate (TFR) in India dropped to 2.0 at the national level in the NFHS-5 survey (2019-21), below the replacement level of 2.1, and most states have TFRs that are well below that mark. Using population policy as the basis for limiting maternity entitlements in state service rules is an administrative practice that has outlived its original context. The decision of the Madras High Court is, among other things, a reminder that such measures need to be justified by contemporary considerations, not just historical ones.

What Must Follow

The ruling resolves the issue before the Madras High Court. However, case-by-case decision-making cannot be the sole solution. There must be three things that follow.

First, Tamil Nadu and other states with such orders should review their service rules that contain two-child norms in maternity benefits. Rules that do not align with the Maternity Benefit Act and the Supreme Court finding in K. Umadevi (2025) should be amended in advance, rather than litigating till they are repealed piecemeal.

Second, the National Commission for Women and state women's commissions should monitor such orders. A public employee should not be forced to litigate - often at their personal and professional cost - to uphold a right that the Supreme Court has already endorsed.

Third, the legal fraternity must be careful in describing maternity rights as a financial liability and a form of special treatment. They are fundamental constitutional guarantees. A woman's body does not follow administrative schedules: the physical needs of a third pregnancy are the same as those of the first, and legislation should recognize this.

The decision made by the Madras High Court on April 28, 2026, marks an essential change in direction. The March 13, 2026, Government Order was incompatible with the Maternity Benefit Act, inconsistent with the Supreme Court's K. Umadevi ruling, and inconsistent with the Constitution's provisions under Articles 14, 21, and 42. By overturning it, the Court upheld what ought to be a settled idea that a woman's right to maternity protection is unaffected by the fact that this is her third pregnancy. The judiciary will continue to strike down such orders when issued. Governments themselves still have to take on the more significant responsibility of making sure that state governments' service regulations are in line with established law.

Author is Practicing Advocate at Patna High Court. Views Are Personal.