On April 28, 2026, a Division Bench of the Madras High Court comprising Justices R. Suresh Kumar and N. Senthilkumar set aside the Government Order, directed the Principal District Judge to grant Shayee Nisha maternity leave on par with first and second pregnancies, and delivered what should have been an unremarkable observation but was, given the circumstances, necessary: the state cannot ration maternity protection by counting a woman's children.

The judgment would have been significant on its own. What makes it remarkable is the institutional context in which it arrived.

The state knew. It acted anyway.

In January 2026, a Division Bench of the same Madras High Court had already disapproved a similar maternity leave denial. The Court directed that its order be circulated among all judicial officers across Tamil Nadu. Two months later, in March 2026, the state government issued the very Government Order the Court had flagged as problematic. The GO restricted third-pregnancy maternity leave to 12 weeks, directly contradicting the Court's January direction.

The Madras High Court noted this sequence in its April 28 order. The state was not unaware of the legal position. It chose to override it. The GO was issued after the Court had spoken, not before. This is not a case of an uninformed bureaucracy applying an old rule. This is a case of a state government issuing a new order that it knew was inconsistent with both High Court precedent and Supreme Court rulings.

The law the GO ignored

The legal position on maternity benefits is not ambiguous. Three sources of law converge on the same conclusion.

First, the Maternity Benefit Act, 1961, as amended in 2017, provides 26 weeks of paid maternity leave for the first two children and 12 weeks for subsequent children. This applies to establishments covered under the Act. For government employees, service rules typically provide maternity leave without the two-child restriction, because government service conditions are governed by their own regulations, not by the Maternity Benefit Act's specific provisions.

Second, the Supreme Court's ruling in Secretary, State of Karnataka v. Umadevi established principles of non-discrimination in service conditions. The Madras High Court in Shayee Nisha relied on this ruling, along with two earlier Division Bench judgments in B. Ranjitha and P. Mangaiyarkkarasi, both of which had held that maternity leave for government employees cannot be restricted based on the number of pregnancies.

Third, Articles 14, 21, and 42 of the Constitution. Article 14 prohibits discrimination. Article 21 protects the right to life and dignity, which the Supreme Court has consistently held includes reproductive autonomy. Article 42 directs the state to make provisions for just and humane conditions of work and maternity relief.

The Tamil Nadu GO violated all three.

The larger pattern: India's maternity infrastructure penalises motherhood

Shayee Nisha's case is not isolated. It is part of a pattern in which Indian law and Indian institutions treat maternity as a concession rather than a right, and then ration that concession based on how many times a woman exercises it.

Six weeks before the Madras HC ruling, the Supreme Court delivered another maternity judgment that received less attention but carries equal significance. On March 17, 2026, a bench of Justices J.B. Pardiwala and R. Mahadevan struck down Section 60(4) of the Social Security Code, 2020, which allowed 12 weeks of maternity leave for adoptive mothers only if the adopted child was below three months of age. The Court held that maternity protection cannot be conditioned on the age of the child. An adoptive mother, the Court observed, has the same rights and obligations as a natural mother.

In the same judgment, the Supreme Court asked the Centre to introduce a provision recognising paternity leave as a social security benefit. India has no statutory paternity leave. The Central Civil Services rules provide 15 days of paternity leave for government employees. The private sector has no obligation at all. The absence of paternity leave reinforces the assumption that childcare is exclusively a maternal responsibility, which in turn reinforces the mid-career exit that costs every profession, including the legal profession, its women.

The two-child norm and its constitutional shadow

The Tamil Nadu GO reflects a broader policy tendency across Indian states to impose a two-child norm through service conditions. Several states, including Rajasthan, Madhya Pradesh, Andhra Pradesh, and Maharashtra, have laws or rules that disqualify individuals with more than two children from contesting panchayat elections or holding certain government positions. The Supreme Court in Javed v. State of Haryana (2003) upheld such restrictions, finding them consistent with the state's population policy.

But there is a constitutional distinction between eligibility restrictions for public office and the denial of maternity benefits to an existing employee. The former is a condition of candidacy. The latter is a withdrawal of a workplace right from a woman who is already serving. The Madras High Court drew this distinction implicitly by holding that the GO could not override the settled legal position on maternity leave, regardless of the state's policy objectives on population control.

The question the judgment raises is whether a state can use maternity benefits as an instrument of population policy. The Madras High Court's answer is no. Whether the Supreme Court will address the question directly remains to be seen, but the direction of travel is clear: in 2026, the judiciary is treating maternity as a constitutional right, not a policy tool.

What this means for working women beyond government service

Shayee Nisha is a government employee. She had the institutional standing to file a writ petition. She had access to the Madras High Court. She won.

Most Indian women do not have these advantages. The Maternity Benefit Act itself restricts leave for a third child to 12 weeks for women in covered establishments. Women in the informal sector, who constitute the majority of India's female workforce, have no maternity protection at all. The Pradhan Mantri Matru Vandana Yojana provides Rs 6,000 per mother, an amount set in 2013 and not revised since, now worth approximately Rs 3,400 in real terms.

The Madras HC judgment protects Shayee Nisha. It does not protect the garment worker in Tirupur, the domestic worker in Chennai, or the agricultural labourer in Thanjavur. The constitutional principle the Court articulated, that maternity protection cannot be rationed by the number of children, has no institutional mechanism to reach the women who need it most.

The suffering, as the Madras High Court observed, is the same in all pregnancies. The law should be too.

Author Bhavya Razshree is an Advocate practicing at Delhi High Courts & Co-Founder of LawSarathi.in and Aditya Ashok is a Public Policy Consultant at Government Advisory. Views are personal.