'Child Adoption Leave' A Fundamental Right Of Adoptive Mothers Under Article 21: Chhattisgarh High Court

In a landmark judgment, the Chhattisgarh High Court has held that women employees who adopt children are also entitled to childcare/child adoption/maternity leave since it is a fundamental right of every mother under Article 21 of the Constitution, irrespective of the mode of attainment of motherhood, to give motherly care and attention to their new-born children.Justice Bibhu Datta Guru also clarified that no discrimination can be made between biological and surrogate/adoptive mothers while granting maternity benefits. The Single Bench held –“There is no distinction between the natural, biological, surrogate or commissioning/adoption mothers and all of them have fundamental right to life and motherhood, contained under Article 21 of the Constitution of India and children born from the process of surrogacy/adoption have the right to life, care, protection, love, affection and development through their mother, then certainly such mothers have right to get maternity leave for above purpose.”Case BackgroundThe petitioner was working as an Assistant Administrative Officer at Indian Institute of Management (IIM), Raipur. She along with her husband adopted a two-day infant girl on November 20, 2023. Thereafter, she applied for child adoption leave of 180 days with effect from that very date. However, the respondent authorities by the impugned order dated December 18, 2023 denied the said leave stating that as per the institute's HR policy, there is no provision for child adoption leave, but under the head of commuted leave, the institute provides only a maximum of 60 days leave to female staff with less than two living children who adopt a child less than one year old. Therefore, the petitioner was granted commuted leave for a period of 60 days from 20.11.2023 to 18.01.2024.The petitioner kept on asking for a leave of 180 days as per the provisions of the Central Civil Services (Leave) Rules, 1972 ('the 1972 Rules'). She specifically pointed out that wherever the HR policy of the institution is silent, it provides that the provisions enumerated under the Central Government Rules may be adhered to and therefore, had the authorities followed the 1972 Rules, she would have been granted 180 days of child adoption leave.When her repeated representations to the authorities did not bear any result, she approached the State Women Commission which recommended for grant of child adoption leave of 180 days and commuted leave of 60 days. The respondent authorities of the IIM challenged the order of the Women Commission before the High Court, which held in favour of the institution but liberty was granted to the petitioner to take appropriate recourse of law against the decision taken by the IIM. Accordingly, the petitioner filed this writ petition.Articles 19 & 21 enforceable even against 'non-state' entitiesRefuting the challenge to the maintainability of the writ petition, the Court held that the petition is concerned about a constitutional entitlement, denial of which would lead to depriving a woman of her due participation as a member of the workforce violating her rights under Articles 14, 15, 19(1)(g) and 21 of the Constitution. Referring to the landmark decision of the Supreme Court in Kaushal Kishor v. State of U.P., 2023 LiveLaw (SC) 4, the Court held that fundamental rights under Articles 19 and 21 can be enforced even against persons other than the State or its instrumentalities.Right of adoptive mother for child care leaveJustice Guru then went on to examine the HR policy of the respondent institution which provided that if any matter relevant to the service conditions of the employees is not specifically covered in the Manual, the institute shall be guided by the rules, norms and procedures as prescribed by the Government of India from time to time. As per Rule 43-B(1) of the 1972 Rules, a female Government servant, with fewer than two surviving children, on accepting a child in pre-adoption foster care or on valid adoption of a child below the age of one year, may be granted child adoption leave, by an authority competent to grant leave, for a period of 180 days immediately after accepting the child in pre-adoption foster care or on valid adoption, as the case may be.“Since the HR policy of the respondent No.2 is silent about the child adoption leave and under the said circumstances as per clause 1 of its own policy they are required to adopt the Rules, 1972 framed by the Central Government wherein sub rule (1) of Rule 43-B categorically provides for grant of 180 days child adoption leave,” the Court said.The Court also cited the Directive Principles under Articles 38, 39, 42 and 43 of the Constitution to hold that adoptive mothers, like all other mothers, are capable of experiencing deep love and affection for their children. The love and affection they offer, it said, can be just as strong and profound as that of a biological mother.The Bench stressed that the participation of women in the work-force is not...

'Child Adoption Leave' A Fundamental Right Of Adoptive Mothers Under Article 21: Chhattisgarh High Court

Jyoti Prakash Dutta

Tags