A Mother Can’t Be Compelled To Choose Between Her Motherhood & Employment, State Can’t Discriminate Against Her 'Right To Dignity' As Mother: Kerala HC [Read Judgment]

“No service Regulations can stand in the way of a woman for claiming protection of her fundamental right of dignity as a mother,said the Court. The High Court asks state to bring law to protect employees against discrimination due to family responsibilities Can the state, or its instrumentality as an employer, discriminate against a woman employee based on compelling family care giving responsibility (read giving care to her child)?The Kerala High Court has decided in the negative while recognising the fundamental right of a woman to dignity of a mother and fairness at workplace which cannot remain insensitive to the love of a mother for her child.“No service Regulations can stand in the way of a woman for claiming protection of her fundamental right of dignity as a mother,” Justice A Muhamed Mustaque said.The court also emphasised that the government should come up with a legislation to protect employees from discrimination at workplace due to their family responsibilities.The court said so while upholding the plea of a woman against her termination from service on account of her long absence from service as she needed to look after her child suffering from mild-autism.A copy of the judgment has been directed to be forwarded to the Law Commission of India, Department of Labour and Social Welfare of the State and the Union and also to the Law Department of the Union and the State.In the instant case, the court was faced with the petition of a “distressed mother, a working woman who was confronted with the complexity of working environment designed by an architecture without adhering to rules of gender equality; often overwhelmingly to suit men”.Petitioner KT Mini was an assistant with the Life Insurance Corporation of with 17 years of unblemished and uninterrupted service. She had joined LIC as Assistant in 1989 and was working in Calicut. She gave birth to her second child in 2001. The child was afflicted with chicken pox after two years. Later, the child developed speech impairment and abnormal behaviour. Doctors diagnosed her condition as mild autism. Mini, at that time, was working in Calicut.Mini took her daughter to Chennai sometime in the year 2007 for better treatment and applied for transfer to Chennai and proceeded on leave. Her husband, employed with a bank, got posted in Bahrain. Mini also joined him and found looking after her child easier in the company of her spouse.LIC, ignoring her request for extension of leave or transfer to Bahrain, initiated disciplinary action against her and removed her from service. Mini then moved the court.The court, while hearing her plea, said, “This court is called upon to adjudicate on an unique problem related to working women in Constitutional context of fundamental rights.”“Though, there is no protective legislation to protect a working woman against compelling family responsibility discrimination, the Constitutional court cannot ignore involvement of fundamental rights as against the State. The question of legality of disciplinary proceedings should not be assessed in the narrow compass of rules or regulations of the Corporation, but rather within the framework of fundamental rights qua principles relating to family responsibility developed through International Human Rights Law embedded into our constitutional principles,” the court said.Status, dignity and self-respect of a woman as mother; evolution of her rights in IndiaJustice Mustaque said, “Motherhood is all about love, care, affection, protection, nurturing of child etc. It is a dignity inherent in a woman. Dignity means the quality that holds her in esteem. She is considered to be noble and honourable. Motherhood is perhaps the most important challenging job in the world. The principles enunciated through the Human Rights Law demand that the dignity of the individual is to be protected. On account of her social status as above, a woman shall not be discriminated while competing with men in the field of employment or in any other segment.”Holding that Motherhood is integral to the dignity of a woman, the court said, “Indian society is a religious society. From birth to death for an Indian, religion matters. During Vedic period, the women enjoyed highest status.”“Foreign religions like Islam and Christianity hold “mother” in the esteem position in the society. The traditions followed in Hindu, Muslim, Christian etc. communities through practices allude how Indian society value a person-hood of the woman as a mother. This case is a pointer how promise of dignity and equality under the Constitution will remain as a distant reality if there is no effective interference,” it said.Employer to protect person-hood of woman as mother The court said motherhood is not an excuse, but a right which has to be protected by an employer in certain circumstances.The court held motherhood is an integral part of dignity of a woman and encompasses status, dignity and self-respect as elements. Article 21 protects life...

A Mother Can’t Be Compelled To Choose Between Her Motherhood & Employment, State Can’t Discriminate Against Her 'Right To Dignity' As Mother: Kerala HC [Read Judgment]

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