The Rajasthan High Court has directed the State to reconsider a far-off transfer of a mother of 2-months old infant, opining that it was the general perception that as far as possible, a woman employee who was having a child below one year should not be disturbed and her case should be considered sympathetically rather than mechanically.

While underscoring the right of motherhood as well as the right of the infant of being breast-fed under Article 21 of the Constitution, the bench of Justice Anoop Kumar Dhand observed that involvement of an infant shifted the legal lens from administrative efficiency to the best interests of the child since the latter became paramount consideration for the Court.

“The right to motherhood, right to breast feed and right of infant to be breast fed and nurtured have been held to be part of Right to Life with dignity under Article 21 of Constitution.

Forcible separation of a two-month-old child from mother due to transfer to a far off place would amount to deprivation of this invaluable right, both for mother and child, and would cause irreparable psychological trauma, insecurity, malnutrition and health hazard to the infant, which cannot be compensated in any manner. The State as a model employer is expected to protect this sacred bond and not to break it by mechanical transfer.”

Furthermore, the Court highlighted lack of policy for handling such exigencies involving women employees who had recently delivered or had an infant to take care of, and appealed to the Government to put in place an appropriate transfer policy to take care of this hardship faced by both the mother and the infant.

For context, the petitioner was posted as a senior teacher in Gangapur, Sawaimadhopur, and was transferred to Masalpur, Karauli, just two months after she gave birth. An appeal was filed against this transfer on the ground that such a far-away transfer would pose difficulties for her in infant's care. However, this appeal was rejected. Hence, the present petition was filed.

After hearing the contentions, the Court opined that the order was not only against the Transfer Policy of the State Government but also against the principles of humanity and Article 21 of the Constitution. It stated,

“Motherhood is the mother of all civilizations…No civilization could have passed without recognizing the power of mother and often figuratively projected her as Goddess…Mother is she who can take place of all others, but whose place no one else can take. The bond between mother and her child is special one. It remains unchanged by time or distance. It is the purest love-unconditional and true.”

The Court highlighted that the initial days including the first six months of exclusive breast-feeding was universally recognized by WHO and UNICEF as most critical for physical, mental and emotion development of the child.

Hence, child care, maternal care, and infant welfare were integral part of social justice, and in case of female employees who were nursing mothers, a more humane, compassionate and sensitive approach was required.

In this background, the Court opined that transferring the mother at such a tender age of the infant was against the spirit of the Maternity Benefits Act, 1961, as amended in 2017, the Child Care Leave norms, and the international convention on Rights of the Child.

Accordingly, the State was directed to reconsider petitioner's case sympathetically and humanely, in the interest of the 2-months old infant. Till such reconsideration, the transfer order was stayed.

Further, the Court observed that it was high time since the State formulated a policy to address this limb of the transfers of women employees. The registry was directed to forward the copy of the order to Ministry of Law and Justice.