As long as the Maternity Benefit Act of 1961 does not place any restriction on the number of children for the purpose of availing maternity benefits, no other rule or regulation can put fetters, the Madras High Court said while ordering maternity leave of one year to a government schoolteacher who had begotten a third child.
Allowing a writ petition against the rejection of her leave application, Justice V. Parthiban said the country, being a signatory to conventions relating to women empowerment and implementation of benefits relating to labour laws, was constitutionally bound to give effect to commitments made in those international conventions.
The judge pointed out that the Maternity Benefit Act was the result of the above commitment, and it was also a Constitutional imperative in tune with the directive principles of the State Policy as embedded in the Articles 39 and 42 of the Constitution for securing just and humane conditions of work and for maternity relief.
Since the State government had restricted maternity benefits for begetting only two children the judge said any executive order, circular or subordinate legislation or even a State law not in consonance with the Maternity Benefit Act, a central legislation, must be read down to give a Constitutional thrust.
On being informed that the State government on August 23, 2021 issued a Government Order enhancing the maternity leave from 270 days (nine months) to 365 days, the judge appreciated the government for its studied view towards motherhood and its deep understanding of the importance of wholesome fostering of a newborn.
“Maximising the maternity benefit under the said G.O. is a reflection of sublime concern of the Government towards the well being of its women employees. The enhanced benefit under the said G.O. is protected in terms of Section 27(2) of the Maternity Benefit Act even though the Central Act is lagging behind on this aspect,” he added.
The case of the petitioner before the court was that she had begotten two children before joining government service through her first marriage. After falling out of the first marriage and obtaining a divorce, both her children remained in the custody of their father. The petitioner married again and applied for maternity leave in August last.
However, the Dharmapuri Chief Educational Officer (CEO) rejected her application on the grounds that she already had two surviving children, and therefore, the maternity leave sought for the third child could not be granted.
