Service Law: Central Civil Services (Leave) Rules 1972: r. 43 – Maternity leave – Entitlement to – Female government servantnursing officer applied for maternity leave on the birth of her first biological child when she had already taken the benefit of child care leave in respect of the two children born to her spouse from his first marriage – Rejected by the tribunal as also the High Court – On appeal, held: Independent of the grant of maternity leave, a woman is also entitled to the grant of child care leave for taking care of her two eldest surviving children whether for rearing or for looking after any of their needs, such as education, sickness and the like – Both maternity leave and child care leave constitute distinct entitlements – The fact that the nursing officer’s spouse had two biological children from his first marriage would not impinge upon her entitlement to avail maternity leave for her sole biological child – Grant of child care leave to her cannot be used to disentitle her to maternity leave u/r. 43 – Unless a purposive interpretation were to be adopted, the object and intent of the grant of maternity leave would simply be defeated – Grant of maternity leave under the Rules of 1972 is intended to facilitate the continuance of women in the workplace – Child birth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective – Furthermore, the guardians and caretakers-mother and father, of children may change with remarriage, adoption, or fostering – Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation – On facts, the structure of the employee’s family changed when she took on a parental role with respect to her spouse’s biological children from his previous marriage – When courts are confronted with such situations, they would do well to attempt to give effect to the purpose of the law in question rather than to prevent its application – Thus, the nursing officer was entitled to the grant of maternity leave – Judgment of the High Court and the tribunal is set aside.
Allowing the appeal, the Court
HELD: 1.1 Under Article 15(3) of the Constitution, the State is empowered to enact beneficial provisions for advancing the interests of women. The right to reproduction and child rearing has been recognized as an important facet of a person's right to privacy, dignity and bodily integrity under Article 21. Article 42 enjoins the State to make provisions for securing just and humane conditions of work and for maternity relief. [Para 21][572-B-C]
1.2 India has ratified to several international conventions of the United Nations. Article 25(2) of the UDHR provides that motherhood and childhood are entitled to special care and assistance. Article 11(2)(b) of CEDAW requires states “to introduce maternity leave with pay or comparable social benefits.” In alignment with the Constitution as well as the treaties mentioned, Rule 43(1) of the Rules of 1972 contemplates the grant of maternity leave for a period of 180 days. Independent of the grant of maternity leave, a woman is also entitled to the grant of child care leave for taking care of her two eldest surviving children whether for rearing or for looking after any of their needs, such as education, sickness and the like. Child care leave under Rule 43-C can be availed of not only at the point when the child is born but at any subsequent period as is evident from the illustrative causes which are adverted to in the provisions. Both constitute distinct entitlements. [Paras 22, 23][572-D; 573-G-H; 574-A-B]
1.3 The facts of the present case indicate that the spouse of the appellant had a prior marriage which had ended as a result of the death of his wife after which the appellant married him. The fact that the appellants spouse had two biological children from his first marriage would not impinge upon the entitlement of the appellant to avail maternity leave for her sole biological child. The fact that she was granted child care leave in respect of the two biological children born to her spouse from an earlier marriage may be a matter on which a compassionate view was taken by the authorities at the relevant time. Gendered roles assigned to women and societal expectations mean that women are always pressed upon to take a disproportionate burden of childcare work. According to a “time-use survey conducted by the Organisation for Economic Co-operation and Development (OECD), women in India currently spend upto 352 minutes per day on unpaid work, 577% more than the time spent by men.12 Time spent in unpaid work includes childcare. In this context, the support of care work through benefits such as maternity leave, paternity leave, or child care leave (availed by both parents) by the state and other employers is essential. Although certain provisions of the Rules of 1972 have enabled women to enter the paid workforce, women continue to bear the primary responsibility for childcare. The grant of child care leave to the appellant cannot be used to disentitle her to maternity leave under Rule 43 of the Rules of 1972. [Para 24][574-C-F]
1.4 Unless a purposive interpretation were to be adopted in the present case, the object and intent of the grant of maternity leave would simply be defeated. The grant of maternity leave under Rules of 1972 is intended to facilitate the continuance of women in the workplace. It is a harsh reality that but for such provisions, many women would be compelled by social circumstances to give up work on the birth of a child, if they are not granted leave and other facilitative measures. No employer can perceive child birth as detracting from the purpose of employment. Child birth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective. [Para 25][574-G; 575-A]
1.5 The predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one s familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination. [Para 26][575-B-E]
1.6 The structure of the appellants family changed when she took on a parental role with respect to her spouse s biological children from his previous marriage. When the appellant applied to PGIMER for maternity leave, PGIMER was faced with facts that the law may not have envisaged or adequately accounted for. When courts are confronted with such situations, they would do well to attempt to give effect to the purpose of the law in question rather than to prevent its application. [Para 27][575-F]
1.7 The appellant was entitled to the grant of maternity leave. The communication of the third respondent denying her the entitlement was contrary to the provisions of Rule 43. The impugned judgment of the High Court and the judgment of the CAT is set aside. The appellant shall be granted maternity leave under Rule 43. [Para 28][575-G-H; 576-A]
KH Nazar v. Mathew K Jacob (2020) 14 SCC 126 : [2019] 14 SCR 928; Badshah v. Urmila Badshah Godse (2014) 1 SCC 188 : [2013] 10 SCR 259; Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000) 3 SCC 224 : [2000] 2 SCR 171; Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1 : [2017] 10 SCR 569; Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1 : [2009] 13 SCR 989 – referred to.
Organisation for Economic Co-operation and
Development, ‘Time-Use’ (OECD Stat) <https://
stats.oecd.org/Index.aspx? datasetcode = TIME_ USE#> accessed 22 August 2022 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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