'Child Adoption Leave' A Fundamental Right Of Adoptive Mothers Under Article 21: Chhattisgarh High Court
In a landmark judgment, the Chhattisgarh High Court has held that women employees who adopt children are also entitled to childcare/child adoption/maternity leave since it is a fundamental right of every mother under Article 21 of the Constitution, irrespective of the mode of attainment of motherhood, to give motherly care and attention to their new-born children.Justice Bibhu Datta Guru...
In a landmark judgment, the Chhattisgarh High Court has held that women employees who adopt children are also entitled to childcare/child adoption/maternity leave since it is a fundamental right of every mother under Article 21 of the Constitution, irrespective of the mode of attainment of motherhood, to give motherly care and attention to their new-born children.
Justice Bibhu Datta Guru also clarified that no discrimination can be made between biological and surrogate/adoptive mothers while granting maternity benefits. The Single Bench held –
“There is no distinction between the natural, biological, surrogate or commissioning/adoption mothers and all of them have fundamental right to life and motherhood, contained under Article 21 of the Constitution of India and children born from the process of surrogacy/adoption have the right to life, care, protection, love, affection and development through their mother, then certainly such mothers have right to get maternity leave for above purpose.”
Case Background
The petitioner was working as an Assistant Administrative Officer at Indian Institute of Management (IIM), Raipur. She along with her husband adopted a two-day infant girl on November 20, 2023. Thereafter, she applied for child adoption leave of 180 days with effect from that very date.
However, the respondent authorities by the impugned order dated December 18, 2023 denied the said leave stating that as per the institute's HR policy, there is no provision for child adoption leave, but under the head of commuted leave, the institute provides only a maximum of 60 days leave to female staff with less than two living children who adopt a child less than one year old. Therefore, the petitioner was granted commuted leave for a period of 60 days from 20.11.2023 to 18.01.2024.
The petitioner kept on asking for a leave of 180 days as per the provisions of the Central Civil Services (Leave) Rules, 1972 ('the 1972 Rules'). She specifically pointed out that wherever the HR policy of the institution is silent, it provides that the provisions enumerated under the Central Government Rules may be adhered to and therefore, had the authorities followed the 1972 Rules, she would have been granted 180 days of child adoption leave.
When her repeated representations to the authorities did not bear any result, she approached the State Women Commission which recommended for grant of child adoption leave of 180 days and commuted leave of 60 days. The respondent authorities of the IIM challenged the order of the Women Commission before the High Court, which held in favour of the institution but liberty was granted to the petitioner to take appropriate recourse of law against the decision taken by the IIM. Accordingly, the petitioner filed this writ petition.
Articles 19 & 21 enforceable even against 'non-state' entities
Refuting the challenge to the maintainability of the writ petition, the Court held that the petition is concerned about a constitutional entitlement, denial of which would lead to depriving a woman of her due participation as a member of the workforce violating her rights under Articles 14, 15, 19(1)(g) and 21 of the Constitution.
Referring to the landmark decision of the Supreme Court in Kaushal Kishor v. State of U.P., 2023 LiveLaw (SC) 4, the Court held that fundamental rights under Articles 19 and 21 can be enforced even against persons other than the State or its instrumentalities.
Right of adoptive mother for child care leave
Justice Guru then went on to examine the HR policy of the respondent institution which provided that if any matter relevant to the service conditions of the employees is not specifically covered in the Manual, the institute shall be guided by the rules, norms and procedures as prescribed by the Government of India from time to time.
As per Rule 43-B(1) of the 1972 Rules, a female Government servant, with fewer than two surviving children, on accepting a child in pre-adoption foster care or on valid adoption of a child below the age of one year, may be granted child adoption leave, by an authority competent to grant leave, for a period of 180 days immediately after accepting the child in pre-adoption foster care or on valid adoption, as the case may be.
“Since the HR policy of the respondent No.2 is silent about the child adoption leave and under the said circumstances as per clause 1 of its own policy they are required to adopt the Rules, 1972 framed by the Central Government wherein sub rule (1) of Rule 43-B categorically provides for grant of 180 days child adoption leave,” the Court said.
The Court also cited the Directive Principles under Articles 38, 39, 42 and 43 of the Constitution to hold that adoptive mothers, like all other mothers, are capable of experiencing deep love and affection for their children. The love and affection they offer, it said, can be just as strong and profound as that of a biological mother.
The Bench stressed that the participation of women in the work-force is not a matter of privilege, but a constitutional entitlement protected by Articles 14, 15 and 21 of the Constitution, besides Article 19(1)(g).
“The 'State' as a model employer cannot be oblivious to the special concerns which arise in the case of women who are part of the work force. The provision of Child Care Leave to women sub-serves the significant constitutional object of ensuring that women are not deprived of their due participation as members of the work force. Otherwise, in the absence of a provision for the grant of Child Care Leave, a mother may well be constrained to leave the work force.”
The Court further underlined that the child adoption leave allows women to focus entirely on development of their children, free from the pressure of profession. Therefore, grant of leave is not just a benefit but a right that supports the fundamental need of a woman to take care of her family.
“It is the inherent right of every women employee which cannot be simply denied on technical grounds. If a woman is denied child care leave, it offends her fundamental right to life. The care that Indian mothers receive before and after they have a child, is ingrained in our Indian culture. Therefore, it makes sense to have the same care, even at the workplace,” it added.
No discrimination basing upon mode of attainment of motherhood
Justice Guru further made it clear that there cannot be any discrimination, as far as the maternity benefits are concerned, only on the ground that concerned woman attained motherhood through adoption. He said that the object of the leave is to protect the dignity of motherhood and also to ensure social justice to women.
“A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy/adoption. A newly born child cannot be left at the mercy of others as it needs rearing and that is the most crucial period during which the child requires care and attention of mother. The tremendous amount of learning that takes place in the first year of the baby's life, the baby learns a lot too. A bond of affection has also to be developed.”
It was made crystal clear that there can be no distinction between natural, biological, surrogate or commissioning/adoptive mothers as all of them have fundamental right to life and motherhood under Article 21 of the Constitution and children begotten from the process of surrogacy/adoption have the right to life, care, protection, love, affection and development through their mothers.
To substantiate further, reliance was placed upon the judgments of the Apex Court in B. Shah v. Presiding Officer, Labour Court, Coimbatore & Ors. (1977) and Lakshmi Kant Pandey v. Union of India (1984). Credence was also drawn from the stipulations of the Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).
“To become a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the workplace while rearing up the child after birth,” it observed.
Accordingly, the Court held that the petitioner is entitled to 180 days child adoption leave as per the 1972 Rules. Since she was already granted 84 days leave as per the Maternity Benefit (Amendment) Act, 2017, the respondent authorities were directed to verify and adjust the same against child adoption leave.
Case Title: Lata Goyal v. The Union of India & Anr.
Case No: WPS No. 6831 of 2024
Date of Judgment: May 05, 2025
Counsel for the Petitioner: Shri Abhishek Sinha, Sr. Advocate with Ms Khushboo Naresh Dua, Advocate
Counsel for the Respondents: Shri Kishore Bhaduri, Sr. Advocate with Shri Sabyasachi Bhaduri & Shri Harsh Dave, Advocates