Mother Entitled To Maternity Leave Of 26 Weeks For 3rd Child If She Doesn't Have Custody Of Other 2 Children : Madras High Court

In a pertinent judgment, Madras High Court has unequivocally held that Section 5 of the Maternity Benefits Act does not impose any cap on the number of deliveries for the grant of maternity benefit. The court went on to observe that there is only differentiation on the basis of the period of maternity benefit available to women employees with less than two surviving children and women having two or more than two surviving children."A woman employee having less than two surviving children is entitled to the maximum period of benefit i.e. twenty six weeks and for a woman employee having two or more than two surviving children, the benefit is restricted to twelve weeks. However, no ceiling on the number of children has been imposed towards entitlement of the maternity leave per se", the court clarified.The Court added,"The semantic construct of the expression "having surviving children" must be taken to mean that the woman Government servant seeking the benefit must have custody of the children."1) No Cap On Number Of Children For Availing Maternity Benefits As Per The ActJustice V. Parthiban held that even in a hypothetical situation where the Fundamental Rules of service applicable to an employee places a restriction like that of a 'two-child' norm, the same will be held repugnant in terms of the central legislation of Maternity Benefit Act and) and therefore, the same will be held void in terms of Article 254 of the Constitution."When the Central Act (M.B. Act, 1961) is stated to be in furtherance of the Directive Principles of the State Policy as contained in the Constitution of India, any executive orders, circulars or subordinate legislation or even the State law which is not in consonance with the Central enactment will have to be read down to give a constitutional thrust and purpose in terms of the Central enactment. As long as the Central enactment has not placed any restrictions on the number of children for the purpose of availing maternity benefits, no other rule or regulations can put any fetters on such claim", the court concluded.Relying on Madras High Court judgment in N.Mohammed Mohideen & Anr vs. Deputy Commissioner of Labour (Inspection) Chennai, (2008), the court observed that as long as Article 42 of the Constitution read with the provisions of the M.B. Act, 1961, is available, every female worker covered by the Act is entitled to claim maternity benefit without any ceiling on the number of deliveries made by them. The court also mentioned a High Court judgment in Ruksana v. State of Haryana (2011) and noted that Maternity Benefit Act would have an overriding effect over any service rules. Even if the High Court has held that family planning is a part of national public policy, restrictions on maternity benefits accordingly cannot be justified unless and until there is an amendment to the central enactment, Justice V. Parthiban explained.2) 'Having Surviving Children' Means Having 'Custody Of Children'On another important aspect, the court clarified that the expression "having surviving children" in the Fundamental Rules must be constructed harmoniously with the M.B Act to mean that the Woman Government Servant seeking the maternity benefit must have custody of children."More particularly, with reference to the expression used in the provision of Section 5(3) of the M.B. Act, 1961 that maximum period of entitlement of maternity leave benefit for a woman having two or more than two surviving children must mean that the mother having children in her custody, literally and factually."Therefore, the court concluded that the two surviving children must mean children in the lawful custody of the mother on a purposive and harmonious reading of the provisions in the Fundamental Rules read with those in Maternity Benefits Act.3) Application of TN FR 101(a) and Limitation On Maternity Benefits GrantedThe court was here trying to elucidate on the scope and restrictions imposed by the scope and restriction imposed by the application of Rule 101(a) of the Fundamental Rules governing the Tamil Nadu Government Servants. It restricts the admissibility of the maternity leave benefit to married women government servants, having more than three children. The court noted that the same remained unaltered at least until 2019, the last corrected date as issued by the TN government." On behalf of the government, it has not been demonstrated that the instructions have undergone any amendment so far, adopting two-child norm", the court added.Though the maternity leave rejection letter dated 28.08.2021 mentioned the Fundamental Rule 101(a), the petitioner's claim was primarily rejected by citing a Government Order in June 1997. This State Government Order allegedly applied the two-child norm and restricted maternity benefits accordingly with effect from 1993, instead of the earlier three child ceiling. A. This Government Order in pursuance of the small family norms adopted by the Central...

Mother Entitled To Maternity Leave Of 26 Weeks For 3rd Child If She Doesn't Have Custody Of Other 2 Children : Madras High Court

Sebin James

'Having Surviving Children' Means Having 'Custody Of Children'

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