Maternity Leave to Adoptive Mothers
Recently, the Supreme Court agreed to hear a Public Interest Litigation challenging the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961, which states that a woman who legally adopts a child below three months old will be entitled to 12 weeks of maternity leave. The petition challenges Section 5(4) of the Act on grounds of being “discriminatory” and “arbitrary’ towards adoptive mothers and orphaned children over three months.
The petition also states the 26 weeks benefit for biological mothers in comparison to adoptive mothers which fails to stand the basic scrutiny of Part III of the Constitution, which is linked to the concept of non-arbitrariness.
Finally, the plea also submits that Section 5(4) of the Maternity Benefit Act conflicts with Section 38 of the Juvenile Justice Act, 2015, which requires any orphaned, abandoned, or surrendered child to be declared “legally free for adoption” by the Child Welfare Committee. The Adoption Regulations require two months for a child to be declared “legally free for adoption”.
The original 1961 legislation did not have specific provisions for mothers who adopt, and these were inserted with the 2017 amendment to the Maternity Benefit Act.
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