Full Judgment Text
2026 INSC 246
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
WRIT PETITION (C) NO. 960 of 2021
HAMSAANANDINI NANDURI …PETITIONER
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
J U D G M E N T
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2026.03.17
14:07:44 IST
Reason:
J.B. PARDIWALA, J. :
For the convenience of exposition, this judgment is divided into the
following parts:-
INDEX
I. THE CONTEXT ............................................................................ 2
III. SUBMISSIONS ON BEHALF OF THE PARTIES........................... 4
i. Submissions on behalf of the Petitioner .................................. 4
ii. Submissions on behalf of the Respondents ............................. 6
IV. ISSUES FOR CONSIDERATION ................................................. 7
V. ANALYSIS .................................................................................. 8
A. Maternity protection as a basic human right .......................... 8
i. Recognition of maternity protection in the International Law
framework ........................................................................................................... 10
ii. Statutory recognition of maternity benefit in India .................................. 12
iii.Relevant precedents encapsulating judicial interpretation of maternity
benefit .................................................................................................................. 15
B. The constitutional guarantee of equality under Article 14 of
the Constitution ....................................................................... 29
a. Purpose of social security benefits ............................................................... 29
i. Examining validity of the impugned provision through the test of
permissible classification ............................................................................... 31
C. The right to a dignified life for adoptive parents and adopted
child under Article 21 of the Constitution ................................ 61
i. Adoption as an expression of reproductive autonomy .............................. 61
... 67
ii. Scope and application of the principle of “ best interest of the child ”
D. Examining validity of the impugned provision through its
workability ................................................................................ 79
E. Institutional invisibility of household and care work ........... 88
F. Highlighting the importance and need for paternity leave ... 91
V. CONCLUSION ........................................................................... 97
W.P. (C) No. 960 of 2021 Page 1 of 99
“ Not flesh of my flesh, nor bone of my bone,
But still miraculously my own.
Never forget for a single minute,
You didn’t grow under my heart, but in it. ”
1. We are tempted to preface our judgment with the words of poet
Fleur Conkling Heyliger. The stanza captioned above resonates
with an undiminishing force in the present petition as well. It
communicates that transition into motherhood does not occur
in the brief moment when legal formalities are completed, rather
it is a gradual process that takes shape in the heart of the
mother. It is within these unspoken moments of reassurance
and bonding that the relationship between a mother and child
is gradually formed and strengthened.
2. Before we address ourselves on the issues raised in the writ
petition, we find it apposite to note that the petitioner filed the
I.A. No. 33856/2026 to amend the writ petition to bring on
record the amendment and consolidation of the impugned
provision by way of the Code on Social Security, 2020. We allow
the I.A. for the amendment of the writ petition. The amended
writ petition is considered for the purposes of the following
exposition.
I. THE CONTEXT
3. The petitioner, who is an adoptive mother of two children, has
filed the present petition under Article 32 of the Constitution in
public interest, seeking a declaration to the effect that Section
5(4) of the Maternity Benefit Act, 1961 (for short, “ MB Act ”) as
amended by the Maternity Benefit (Amendment) Act, 2017 (for
W.P. (C) No. 960 of 2021 Page 2 of 99
short, “ Amendment Act, 2017 ”) is unconstitutional, being
violative of Articles 14, 19(1)(g) and 21 of the Constitution,
respectively. The prayer in the petition reads thus:-
“ a) Issue a Writ, Order or direction, more particularly
one in the nature of Writ of Mandamus or any other writ
or direction in the nature of the writ and declare Section
5(4) of the Maternity Benefit (Amendment) Act 2017) as
ultra vires Articles 14, 19 and 21 of the Constitution of
India, and declare the Section 5(4) of the Maternity
Benefit (Amendment) Act 2017) as unconstitutional and
invalid;
b) Pass any other or further order(s) as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of this case, in the interest of justice and
equity. ”
4. At the outset, we must mention that on 21.11.2025, the Code
on Social Security, 2020, came into effect (for short, “ the 2020
Code ”), by which all laws relating to social security, including
that of the MB Act were amended and consolidated. Insofar as
Section 5(4) of the MB Act is concerned, Section 60(4) of the
2020 Code is the existing pari materia provision and holds the
field on the issue at hand.
5. By order dated 12.12.2025, the Court granted the petitioner
permission to take suitable steps to challenge the newly enacted
provision, i.e., Section 60(4) of the 2020 Code. Pursuant to
which, the petitioner filed I.A. No. 33856/2026 seeking
amendment of the petition to challenge Section 60(4) of the 2020
Code on the same grounds which were applicable to Section 5(4)
of the MB Act.
W.P. (C) No. 960 of 2021 Page 3 of 99
6. The impugned provision entitles only those mothers who legally
adopt a child below the age of three months or a commissioning
mother to seek maternity benefit for a period of twelve weeks
from the date on which the child is handed over to the adoptive
mother. However, the challenge before us is limited to the extent
that it governs adoptive mothers.
III. SUBMISSIONS ON BEHALF OF THE PARTIES
i. Submissions on behalf of the Petitioner
7. Ms. Bani Dikshit, the learned counsel appearing for the
petitioner would argue that Section 60(4) of the 2020 Code
creates an unreasonable classification among adoptive mothers.
She submitted that the distinction created by the legislature
between a woman who adopts a child aged less than three
months and a woman adopting a child aged three months or
above is artificial and violative of Article 14. She fortified her
submission by illustrating that if a woman adopts a child aged
four months, she would not be entitled to maternity benefit as
provided under the 2020 Code.
8. She added that such an exclusion bears no rational nexus with
the object of the 2020 Code and unjustly deprives a mother
adopting a child aged three months or above. She further
submitted that the age limit of three months could not be said
to fulfill the bright-line test, as there is no reasonable distinction
between adoptive mothers falling on either side of three-month
limit.
W.P. (C) No. 960 of 2021 Page 4 of 99
9. Ms. Dikshit further submitted that by prescribing the maximum
age of the adopted child at three months, Section 60(4) deprives
all children above the age of three months from receiving
maternal care they need for their development and integration
in their adoptive families. In other words, the provision overlooks
the physical and emotional well-being of the adoptive child aged
three months or above as well as the adoptive parent. Thus, the
provision is arbitrary, unreasonable and discriminatory not only
towards the mother but also towards the child.
10. In the same breath, she submitted that the provision disregards
the long-drawn procedure for the adoption of orphaned,
abandoned, or surrendered children under the Juvenile Justice
(Care and Protection of Children) Act, 2015 (for short, “ the JJ
Act ”) and the Adoption Regulations, 2022 (for short, “ the CARA
Regulations ”). She underscored that the process for an
orphaned, abandoned, or surrendered child to be “legally free for
adoption” would take, at the very least, two months.
Furthermore, for the fulfillment of the residuary the statutory
procedure under the CARA Regulations would require another
month. Thus, in view of such prescribed timeline, the provision
would be rendered completely otiose, as in no case can the legal
process of adoption be completed before the child.
11. She further highlighted that Section 60(4) restricts a woman’s
right to carry on her trade, occupation, and business guaranteed
under Article 19(1)(g) of the Constitution based on the child’s
age. She added that such a restriction dissuades women who
W.P. (C) No. 960 of 2021 Page 5 of 99
are working professionals from adopting. Thus, the provision
fails to ensure that more children are adopted and also
discourages women working in the organized or unorganized
sector from considering adoption.
12. She further submitted that the provision also violates the
adoptive mothers’ and adoptive children’s right to life and
dignity under Article 21 by denying the mother the right to a
wholesome and holistic motherhood and the adoptive children
the right to receive sufficient care to be rehabilitated and
integrated into the new family.
13. In such circumstances referred to above, the learned counsel
appearing for the petitioner would submit that Section 60(4) of
the 2020 Code be declared unconstitutional, to the extent that
it limits the benefits to women adopting children up to three
months old, being violative of Articles 14, 19, and 21 of the
Constitution, respectively.
ii. Submissions on behalf of the Respondents
14. Mr. K.M. Nataraj, the learned Additional Solicitor General
appearing for the respondents submitted that Section 60(4) of
the 2020 Code should to be read and interpreted along with the
entire scheme of the maternity benefit.
15. The learned ASG submitted that the submission canvassed on
behalf of the petitioner that the procedure of the adoption is time
consuming is devoid of any merit. He submitted that with a view
W.P. (C) No. 960 of 2021 Page 6 of 99
to expedite the adoption process, district magistrates and
additional district magistrates have been conferred with the
power to issue adoption orders.
16. In the aforesaid context, he submitted that in case an adoptive
mother adopts a child aged more than three months, she can
avail the creche facilities available at her establishment as per
Section 67 of the 2020 Code.
17. It was further submitted that the prescription of “ a child below
the age of three months ” is reasonable as a child older than three
months does not have the same intensive dependency on the
caregiver in terms of continuous feedings, sleeping regulation
assistance, and immediate parental imprinting to the same
degree.
18. In the last, the learned ASG submitted that Section 60(4) of the
2020 Code strikes a balance between the rights of adoptive
mothers and the concerns of employers. He added that the
provision satisfies the proportionality principle, ensures
harmonious construction with other laws, and is consistent with
international standards.
IV. ISSUES FOR CONSIDERATION
19. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following
questions fall for our consideration:-
W.P. (C) No. 960 of 2021 Page 7 of 99
a. Whether the age limit of three months stipulated under sub-
section (4) of Section 60 of the Social Security Code, 2020,
could be said to be in violation of the Article 14 of the
Constitution being discriminatory towards women who adopt
a child aged three months or above?
b. Whether the age limit of three months stipulated under sub-
section (4) of Section 60 of the Social Security Code, 2020,
could be said to be in violation of the right to reproductive
autonomy of an adoptive mother and the right of the adopted
child to holistic care and development under Article 21 of the
Constitution?
V. ANALYSIS
A. Maternity protection as a basic human right
20. Women, as primary caregivers of children, play a crucial role in
the early development of children, more particularly, in the
formative years of the child when a mother provides stability,
care, and consistent nurturing. During this period, mothers
undertake extensive physical, emotional, and psychological
responsibilities. It often requires them to prioritize childcare over
professional commitments. In such circumstances, institutional
support becomes necessary to enable them to discharge
responsibilities effectively without fear of financial insecurity,
professional disadvantage, or the loss of livelihood.
21. The protection of maternity leave is a basic human right, as it
recognizes conditions that are necessary for the full development
W.P. (C) No. 960 of 2021 Page 8 of 99
of human personality and realization of equality. It embodies an
essential component required to promote equality at workplace
and safeguards maternal and child health. In other words, it
dignifies motherhood.
22. Maternity benefit or the payment in lieu of such leave is intended
to support women during the phase of early motherhood by
providing economic security when they are most engaged in the
care and nurture of a young child. This act of support recognizes
that motherhood entails sustained physical, emotional, and
social exertion which demands time, financial stability and
resources.
23. The concept of maternity benefit acknowledges the ability of a
woman to exercise her reproductive choices without fear of
losing her employment, more particularly, the economic
security. Thus, it ensures that motherhood does not become a
factor for exclusion at workplace.
24. In the aforesaid context, the right of maternity protection
recognizes the biological as well as caregiving realities
associated with motherhood, and seeks to correct structural
inequalities that women face in employment. It represents the
State’s commitment to uphold human dignity, equal treatment
at work, and broader ideals of social justice.
25. Thus, legislating for maternity benefit and childcare, in the form
of payment during periods of recovery and care, crèche facilities
W.P. (C) No. 960 of 2021 Page 9 of 99
at the workplace, and parental leave for tending to young
children, constitutes institutional support aimed at enabling
women to seek and retain employment, participate meaningfully
in public life, and progressively attain substantive equality.
26. It is important to highlight that motherhood is not merely a
biological function but a deeply personal and emotional
experience. It is a right rooted in the freedom to love, nurture,
and raise a child with dignity and devotion. Parenthood is
defined by care and responsibility rather than by physical act of
giving birth alone, even more so for women who choose to
embrace motherhood by adopting a child overcoming social,
emotional, and institutional barriers to provide a child with
security.
i. Recognition of maternity protection in the International
Law framework
27. Article 25(2) of the United Declaration of Human Rights (UDHR)
recognizes that motherhood and childhood are entitled to special
care and assistance. It stipulates that all children enjoy the
same social protection. Further, Article 10(2) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR)
states that mothers are entitled to special protection for a
reasonable period before and after childbirth, including paid
leave or leave supported by adequate social security benefits. In
addition to this, Article 12 obligates the State Parties to take
necessary steps for the healthy development of children.
W.P. (C) No. 960 of 2021 Page 10 of 99
28. The International Labour Organization (ILO) through Maternity
Protection Conventions (Convention No. 3, Convention No. 103,
and Convention No. 183) recommended for entitlements related
to maternity protection at work having regard to the evolving
status and recognition of women’s right at workplace. Initially,
Convention No. 3 provided 12 weeks maternity leave with cash
benefits to ensure continuity of income, daily breaks for nursing,
and protection against dismissal during leave. However, this was
limited to women working in public or private industrial or
commercial undertakings. Later, Convention No. 183 extended
the period of leave to 14 weeks and the scope of protection to
women employed in industrial undertakings and in non-
industrial and agricultural work.
29. Further, Article 11(1) of the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) mandates the
State Parties to take appropriate steps to prevent discrimination
against women on the grounds of maternity and ensure their
right to work. It puts an obligation on the State Parties to
prohibit dismissal on the grounds of maternity leave and
introduce maternity leave with comparable social benefits
without loss of former employment.
30. Simultaneously, Article 3 of the Convention on the Rights of the
Child (CRC) mandates that all actions concerning children must
be taken having regard to the best interests of the child. It urges
the State Parties to ensure that all institutional facilities
W.P. (C) No. 960 of 2021 Page 11 of 99
responsible for the care of children shall conform with the
established standards.
31. What is discernable from the aforesaid discussion is that various
international conventions recognize maternity leave as an
essential human right. The objective of all the aforesaid guiding
principles is to preserve the health of the mother and the child,
to prevent unequal treatment at workplace due to their
reproductive choices, and to promote equality of opportunity
and equitable treatment between genders.
ii. Statutory recognition of maternity benefit in India
32. The earliest statutory recognition of maternity benefit for
working women in India came through the Bombay Maternity
Benefit Act, 1929, which regulated the employment of women in
factories before and after childbirth and provided for the
payment of maternity benefit. In 1931, the Royal Commission
on Labour in India recommended that similar protective
measures be taken across the country. Thus, such protection
was being provided under various State and Central
1
legislations.
33. With a view to bring uniformity in, inter alia , the qualifying
conditions for maternity benefit, period of maternity leave,
payment in lieu of maternity leave, and to reduce disparity and
1
Madras Maternity Benefit Act, 1934 (Act 6 of 1934), Bengal Maternity Benefit
Act, 1939 (Act 4 of 1939), Punjab Maternity Benefit Act, 1943 (Act 6 of 1943),
The Assam Maternity Benefit Act, 1944 (Act 1 of 1944), Bihar Maternity
Benefit Act, 1945 (Act 24 of 1947).
W.P. (C) No. 960 of 2021 Page 12 of 99
extend maternity benefit to all women employed in
establishment, the MB Act was enacted. The Introduction and
the Statement of Objects and Reasons of the Act respectively
read thus:-
“ Maternity protection was being provided under the
different State Acts and the three Central Acts. There
was considerable diversity in their provisions relating
to qualifying conditions, period and rate of benefit, etc.
To reduce the disparities and to provide the maternity
protection to the women employed in all
establishments, including mines, factories and
plantations, except those to which the Employees' State
Insurance Act, 1948 applied, it was proposed to enact
a separate law. Accordingly the Maternity Benefit Bill
was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS
Maternity protection is at present provided under
the different State Acts on the subject and three Central
Acts, viz., the Mines Maternity Benefit Act, 1941, the
Employees' State Insurance Act, 1948 and the
Plantations Labour Act, 1951. There is considerable
diversity in their provisions relating to qualifying
conditions, period and rate of benefit, etc. The proposed
legislation seeks to reduce as far as possible the
existing disparities in this respect. It will apply to all
establishments, including mines, factories and
plantations, except those to which the Employees' State
Insurance Act, 1948 applies and its provisions
approximate as nearly as possible to those of that Act. ”
(Emphasis is ours)
34. The MB Act was enacted with the object of regulating the
employment of women in establishments for periods before and
after child birth and providing for the payment of
in lieu
maternity leave. It aimed to ensure that a working woman does
not have to compromise on her role as a caregiver to her child.
W.P. (C) No. 960 of 2021 Page 13 of 99
35. The concept of maternity benefit also operates as an instrument
of “defamilisation”, whereby it reduces the woman’s reliance on
family for care and protects economic independence. It
represents a legislative commitment towards the promotion of
gender equality by creating an enabling environment that
recognizes and accommodates balancing familial
responsibilities with professional engagement. In doing so, the
statute affirms dignity, equality, and social justice for working
women.
th th th
36. Sometime between 2012 and 2015, the 44 , 45 , and 46
Indian Labour Conferences, respectively, recommended for
enhancement of the period of maternity leave, the introduction
of maternity benefit for adopting and commissioning mothers,
facility of work from home, and provision of creche facility in
establishments. Thus, with the aforesaid amendments were
introduced to enhance participation of women in labour force
and improve work-family balance.
37. The Amendment Act, 2017, inserted sub-section (4) of Section 5
of the MB Act which is in pari materia with Section 60(4) of the
2020 Code. The provision reads thus:-
“ 60. Right to payment of maternity benefit.—( 1)
Subject to the other provisions of this Code, every
woman shall be entitled to, and her employer shall be
liable for, the payment of maternity benefit at the rate
of the average daily wage for the period of her actual
absence, that is to say, the period immediately
W.P. (C) No. 960 of 2021 Page 14 of 99
preceding the day of her delivery, and any period
immediately following that day.
Explanation.—For the purposes of this sub-section,
“the average daily wage” means the average of the
woman's wages payable to her for the days on which
she has worked during the period of three calendar
months immediately preceding the date from which she
absents herself on account of maternity, subject to the
minimum rate of wage fixed or revised under the Code
on Wages, 2019 (29 of 2019).
xxx
(4) A woman who legally adopts a child below the age
of three months or a commissioning mother shall be
entitled to maternity benefit for a period of twelve
weeks from the date the child is handed over to the
adopting mother or the commissioning mother, as the
case may be .”
(Emphasis is ours)
38. Section 60(4) of the 2020 Code provides that a woman who
legally adopts a child below the age of three months is entitled
to maternity benefit for a period of 12 weeks from the date the
child is handed over to the adopting mother.
iii.Relevant precedents encapsulating judicial
interpretation of maternity benefit
39. Before we delve into the discussion of judicial interpretation of
scope, ambit, application of maternity benefit in varying
circumstances that have come before courts, we may look at the
definition of “maternity” in dictionary.
40. The Oxford English Dictionary, defines the word “maternity” as:-
“ The state, condition, or fact of being a mother.”
W.P. (C) No. 960 of 2021 Page 15 of 99
th
Further, the Black's Law Dictionary (8 Ed) defines “maternity”
as:-
“The character, relation, state, or condition of a
mother.”
41. The aforesaid definition reflects a broader understanding of
maternity in relation to motherhood and does not restrict it to
the period before and after childbirth or to the age of the child.
42. We may look into the decision of B. Shah v . Presiding Officer,
Labour Court , reported in (1977) 4 SCC 384 , wherein this
Court held that the interpretation of beneficial legislation must
be guided by its underlying objective of advancing social justice.
The Court emphasized that the period of maternity leave serves
multiple purposes, including enabling the mother’s physical
recovery, facilitating the nurturing and care of the child, and
ensuring the level of her previous efficiency and output.
43. In Municipal Corpn. of Delhi v . Female Workers (Muster
Roll) , reported in (2000) 3 SCC 224 , the claim of the female
workers engaged on muster roll for maternity benefit was
examined on the anvil of Articles 39, 42, and 43 of the
Constitution respectively. The Court, highlighting the critical
phase of motherhood, observed that the MB Act seeks to ensure
that women are treated with dignity at the workplace and
protected from apprehension of victimization on account of
forced absence during maternity. In such circumstances, the
Court underscored that employers are expected to adopt a
W.P. (C) No. 960 of 2021 Page 16 of 99
humane and empathetic approach towards women employers.
The relevant observations read thus:-
“ 13. Parliament has already made the Maternity
Benefit Act, 1961. It is not disputed that the benefits
available under this Act have been made available to a
class of employees of the petitioner Corporation. But the
benefit is not being made available to the women
employees engaged on muster roll, on the ground that
they are not regular employees of the Corporation. As
we shall presently see, there is no justification for
denying the benefit of this Act to casual workers or
workers employed on daily-wage basis.
xxx
33. A just social order can be achieved only when
inequalities are obliterated and everyone is provided
what is legally due. Women who constitute almost half
of the segment of our society have to be honoured and
treated with dignity at places where they work to earn
their livelihood. Whatever be the nature of their duties,
their avocation and the place where they work, they
must be provided all the facilities to which they are
entitled. 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 carrying
a baby in the womb or while rearing up the child after
birth. The Maternity Benefit Act, 1961 aims to provide
all these facilities to a working woman in a dignified
manner so that she may overcome the state of
motherhood honourably, peaceably, undeterred by the
fear of being victimised for forced absence during the
pre-or post-natal period .”
(Emphasis supplied)
44. This Court had the occasion to consider the interpretation of
Rule 43 of the Central Civil Services (Leave) Rules, 1972 (for
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short, “ CCS (Leave) Rules ”), in Deepika Singh v . Pgimer,
Chandigarh , reported in (2023) 13 SCC 681 . The maternity
leave sought by the appellant upon the birth of her first
biological child was rejected on the ground that her spouse had
two children from his previous marriage.
The Court underscored that judicial interpretation must
bridge the gap between law and social realities through a
purposive approach. It noted that the MB Act was enacted to
secure a woman’s rights both as a mother and as a worker, and
the object of maternity leave is to facilitate the continued
participation of women at workplace. What has been conveyed
by this Court, in so many words, is that the birth of a child is a
natural incident of life and that the provisions of the MB Act
must be construed keeping this in mind. An atypical familial
structure must not be weighed less than traditionally
conforming families. The relevant observations read thus:-
“ 26. 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 the 1972 Rules 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 childbirth as
detracting from the purpose of employment. Childbirth
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 .
27. 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
W.P. (C) No. 960 of 2021 Page 18 of 99
(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
undoubtedly holds true for women who take on the role
of motherhood in ways that may not find a place in the
popular imagination. ”
(Emphasis supplied)
45. In yet another case, a woman’s request for maternity leave was
rejected on the grounds that there was no provision for the grant
of maternity leave in respect of a third child from her second
marriage. In K. Umadevi v . State of T.N. , reported in (2025) 8
SCC 263 , the Court interpreted the expression “two surviving
children” in the relevant rules to mean children in lawful
custody of the mother. While considering Section 5 of the MB
Act, the Court observed that the grant of maternity benefit is not
per se denied to a woman employee having more than two
children. In order to effectively achieve broader social welfare
W.P. (C) No. 960 of 2021 Page 19 of 99
goals, the Court sought to harmonize population control
measures with the objective of extending maternity benefit.
46. It would be apposite to refer to the observations of the Delhi High
Court in Rama Pandey v . Union of India , reported in 2015
SCC OnLine Del 10484 , wherein it was noted that except the
physiological changes, all other challenges faced in rearing of a
child are common for all mothers. The Court rejected the
submission made by the respondent that maternity leave is
granted only to deal with biological changes which accompany
pregnancy. It was further highlighted that the concept of
maternity leave shall rest upon motherhood and welfare of the
child. The relevant observations read thus:-
“ 17. The argument of the respondents that the
underlying rationale, for according maternity leave
(which is to secure the health and safety of pregnant
female employee), would be rendered nugatory - to my
mind, loses sight of the following:
(i) First, that entitlement to leave is an aspect different
from the right to avail leave.
(ii) Second, the argument centres, substantially,
around, the interest of the carrier, and in a sense, gives,
in relative terms, lesser weight to the best interest of
the child. ”
(Emphasis supplied)
47. In Dev Shree Bandhe v . C.G. State Power Holding Co. Ltd. ,
reported in 2017 SCC OnLine Chh 1763 , the petitioner,
employed on probation, sought maternity leave which was
declined by the respondent. The Court recognized the right to
motherhood and the right of every child to full development as
part of Article 21. Similarly, the Rajasthan High Court in
W.P. (C) No. 960 of 2021 Page 20 of 99
Chanda Keswani v . State of Rajasthan , reported in 2023
SCC OnLine Raj 3274 , held that the right to life includes the
right to motherhood and the right of every child to full
development. Thus, it was held that denial of maternity leave
cannot be on the ground that the woman seeking it has given
birth biologically, or has begotten a child through surrogacy or
adoption.
48. In Pratiba Himral v . State of H.P. , reported in 2021 SCC
OnLine HP 9295 , the petitioner had adopted a child and sought
the benefit of maternity leave as per the CCS (Leave) Rules.
While allowing the petition, the Himachal Pradesh High Court
noted that one of the purposes of the leave is bonding between
the child and parents. It was observed that an adopted child is
not different from a biological child, thus, the way the child has
come into the life of the mother is no ground to refuse maternity
benefit. The relevant observations read thus:-
“ 11. Not only are the health issues of the mother and
the child considered while providing for maternity
leave, but the leave is provided for creating a bond of
affection between the two. To distinguish between a
mother who begets a child through adoption and a
natural mother, who gives birth to a child, would result
in insulting womanhood and the intention of a woman
to bring up a child begotten through adoption.
Motherhood never ends on the birth of the child and a
commissioning mother cannot be refused paid
maternity leave. A woman cannot be discriminated, as
far as maternity benefits are concerned, only on the
ground that she has obtained the baby through
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 his mother. The tremendous amount of
W.P. (C) No. 960 of 2021 Page 21 of 99
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. ”
(Emphasis supplied)
49. Again, the Delhi High Court in State v . Ravina Yadav , reported
in 2024 SCC OnLine Del 4987 , dealt with the question of
whether maternity leave could be granted to a woman having
two surviving children. The Court adverted to the constitutional
principles flowing from Articles 39, 41, 42, and 43 of the
Constitution respectively, and observed that maternity leave
constitutes an important facet of the constitutional guarantee
available to women. It noted that the scope of maternity leave
under the CCS (Leave) Rules has gradually evolved – initially
confined to biological childbirth, and subsequently extended to
include paternity leave, adoption leave, and childcare leave.
What is noteworthy in the observations of the Court that the
concept of maternity benefit is intended to achieve social justice
for women and children, and the period of leave plays a crucial
role in fostering emotional bonding between the mother and the
child. In this context, the Court also took note of studies
indicating that stress hormone levels in children raised in
orphanages are higher than those in children brought up in a
familial environment. The relevant observations read thus:-
“ 8. The concept of maternity leave, flowing from above
quoted constitutional pronouncements is a matter of not
just fair play and social justice, but also a constitutional
guarantee to women of this country towards fulfillment
whereof, the State is duty bound to act. It is in this
direction that Parliament enacted the Maternity Benefit
Act, 1961 (hereinafter referred to as “the Act”), thereby
consolidating the maternity protection which was
W.P. (C) No. 960 of 2021 Page 22 of 99
earlier being provided under different State and Central
enactments, embodying considerable diversity relating
to the qualifying conditions, period and rate of benefits
etc., to reduce which, a separate central legislation was
required.
xxx
15.2. The early infancy environment and changes have
lasting effect on the development of brain in the child.
Researchers across the world have observed that
infants begin to bond with their mother from the
moment of birth, and this social bond continues to
provide regulatory emotional functions throughout
adulthood. It is part of well documented research that
children from deprived surroundings like orphanages
have vastly different hormone levels as compared to
their parent-raised peers. For instance, in Romania
during 1980s, in target group aged 6 to 12 years, levels
of the stress hormone Cortisol were found much higher
in children who lived in orphanages for more than eight
months as compared to those who were adopted at or
before the age of four months .
15.3. Other researches show that children who
experienced early deprivation of maternal touch had
different levels of Oxytocin and Vasopressin (hormones
that have been linked to emotion and social bonding),
despite having spent an average of three years in a
family home and this environmental change into a
home does not seem to have completely overridden the
effects of earlier neglect, according to medical
researches published in the year 2005 in the
proceedings of the National Academy of Sciences,
University of Wisconsin. The Vasopressin and Oxytocin
neuropeptide systems, which are critical in the
establishment of social bonds and regulation of
emotional behaviors are affected by early social
experience.
15.4. The results of various experiments suggest a
potential mechanism whose atypical function may
explain the pervasive social and emotional difficulties
observed in many children who have experienced
W.P. (C) No. 960 of 2021 Page 23 of 99
aberrant care giving. The social attachments formed
between human infant and her caregiver begin very
early in postnatal life and play a critical role in child's
survival and healthy adaptation. Typically, adults
provide infants with a social environment that is fairly
consistent. Caregivers learn how to recognize and
respond to the infants' needs, thereby creating
predictable contingencies in the environment; these
regularities, in turn, make the infants' environment
secure and conducive to further social learning.
Multiple perceptual, sensory, cognitive, and effective
systems must become synchronized so that a social
bond can develop between an infant and caregiver; this
bond is then reflected in the child's adaptive behavioral
responses to the environment. (Reference : Paper
published by the team of Department of Psychology,
University of Wisconsin, led by Alison B Wismer
Fries (www.pnas.org/cgi/doi/10.1073/pnas.050476
7102)).
(Emphasis supplied)
50. Motherhood does not end with the birth of a child. This was
observed, or rather emphasized by the Chhattisgarh High Court
in Lata Goyal v . Union of India , reported in 2025 SCC OnLine
Chh 5572 , wherein the petitioner, an employee of IIM, sought
directions that adoption leave and child care leave as per the
CCS (Leave) Rules be made applicable to her. The views
expressed by the Court merit commendation.
It observed that a woman’s right to practice a profession is a
constitutional entitlement flowing from Articles 14, 15, and 21
of the Constitution respectively. It emphasized that State cannot
remain oblivious to the needs and concerns of women in
workforce. The Court categorically held that discrimination on
the ground of the mode of bringing a child is impermissible, for
the object of such leave is to dignify motherhood and ensure the
W.P. (C) No. 960 of 2021 Page 24 of 99
healthy growth and development of the child. It refrained from
distinguishing between a biological, adoptive or surrogate
mother. The relevant observations read thus:-
“ 12. Adoptive mothers, like all mothers, are capable of
experiencing deep love and affection for their children,
regardless of whether they are biological or adopted.
The love and affection they offer can be just as strong
and profound as that of a birth mother. Adoptive
mothers, like birth mothers, can form strong bonds of
love and attachment with their children. These bonds
can be crucial for a child's emotional and psychological
well-being.
13. 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. This consideration applies a fortiori in the
case of a mother who has a child with special needs.
Such a case is exemplified in the case of the petitioner
herself.
xxx
15. There ought not to be any discrimination of a
woman as far as the maternity benefits are concerned
only on the ground that she has obtained the baby
through adoption. The object of the leave is to protect
the dignity of motherhood by providing for full and
healthy maintenance to the child. Child care/child
adoption leave is intended to achieve the object of
ensuring social justice to women. Childhood both
require special attention.
W.P. (C) No. 960 of 2021 Page 25 of 99
16. Not only are the health issues of the child
considered while providing leave, but the leave is
provided for creating a bond of affection between the
two. Motherhood never ends on the birth of the child
and a commissioning/adoption mother cannot be
refused paid maternity leave. 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.
17. 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. ”
(Emphasis supplied)
51. Recently, the Kerala High Court in Susan K. John v . National
Board of Examinations in Medical Sciences , reported in
2026 SCC OnLine Ker 1333 , held that maternity leave is a right
and not a leave subject to discretion of the authorities.
52. The commonly drawn distinction between a mother who begets
a child through surrogacy or adoption and a mother who
naturally gives birth to a child perceives motherhood through
the narrow lens of biology and fails to take into account the bond
W.P. (C) No. 960 of 2021 Page 26 of 99
that develops between a mother and her child outside the womb,
which is as crucial and intimate, as the bond that is formed
inside the womb. Further, the said distinction makes
motherhood contingent upon biological requirements and is a
direct affront to the desire and intention of a woman to
experience motherhood and bring up a child. We have no
hesitation in saying that an adoptive mother like the petitioner
would have the same rights and obligations towards the child as
the natural mother.
53. We do not say for a moment that biological mothers and adoptive
mothers form the same category. We acknowledge the
distinction created by the legislature. However, the
constitutional validity of the impugned provision must be tested
by examining the purpose and components of maternity leave
and the extent to which such purpose is served in each
situation.
54. The components of maternity leave broadly consist of three
elements.
i. First, the time necessary for physical recovery following the
birth of a child, which concerns both the well-being of the
mother and the child. As the immediate focus remains on
the mother that she should not be required to resume
employment until she has adequately recovered from the
physical tribulations associated with childbirth.
ii. Secondly, the time required to nurture and develop the
emotional bond between the mother and the child.
W.P. (C) No. 960 of 2021 Page 27 of 99
iii. Thirdly, the time necessary to attend to the physical and
emotional needs of the child and to facilitate the process by
which the child gradually integrates into the family, with the
mother often acting as the primary medium through which
the child is introduced to the familial environment.
55. In case of biological birth, the aforementioned three components
are largely subsumed within one another and are not clearly
distinguishable. The period of physical recovery often overlaps
with the period during which the mother and child establish
emotional attachment and the child begins to adapt to the
familial setting. Whereas, in case of adoption or surrogacy, while
the first component is absent, the second and third component
are present and significant. The legislative recognition of
maternity leave for adoptive and commissioning mothers under
sub-section (4) of Section 60 is itself an acknowledgment of the
importance of these components.
56. It is limpid that in the case of a biological mother, the aforesaid
components, more particularly, the development of the
emotional bond between the mother and the child, are often
supported by physiological mechanisms which are evolutionary
in nature. In the case of adoption, however, the same bond must
be consciously nurtured through time, presence, and sustained
caregiving.
57. It is in this context that the argument of the petitioner assumes
importance that the impugned provision by introducing an
W.P. (C) No. 960 of 2021 Page 28 of 99
arbitrary three-month time limit, deprives adoptive mothers of
children older than three months, the opportunity required for
the effective fulfilment of the above-mentioned second and the
third components, more particularly, when the need for the
same could not be said to be solely dependent on the age of the
adopted child. We shall now proceed with testing the
constitutional validity of the impugned provision on the anvil of
the right to equality.
B. The constitutional guarantee of equality under Article 14
of the Constitution
58. Before testing the constitutional validity of a provision, more
particularly, where it is alleged that it violates fundamental
rights, it is necessary to ascertain the true nature, character and
impact of the provision on the object and intention of the
legislation. Thus, the courts have to look behind the form and
appearance of the provision. In other words, the purport and
intent of the legislation has to be determined.
a. Purpose of social security benefits
59. The discussions in the foregoing paragraphs establishes that the
purport and intent of the MB Act, now forming part of the 2020
Code, is to dignify motherhood, safeguard maternal well-being,
while ensuring continued participation of women in the
workforce. The said Act is a legislative recognition of the
physical, emotional, and social dimensions of motherhood, and
accommodates the pivotal role it plays in a woman’s life. By
providing institutional support, the MB Act endeavours to
W.P. (C) No. 960 of 2021 Page 29 of 99
harmonize professional obligations with familial responsibilities
in order to promote an environment in which both the mother
and the child would thrive.
60. In 2020, the MB Act, along with other laws relating to social
security, were consolidated in order to extend social security
coverage to all persons working in both the organized and
unorganized sectors uniformly. Social security benefits
guarantee labour and economic protection against loss of work
due to illness, disability, death of family members, old age,
unemployment, and maternity.
61. In the case at hand, we are concerned with maternity benefit.
With the increasing participation of women in the workforce,
there emerged a growing recognition of economic contribution
by women, and of the substantial loss of income when their
employment was interrupted. Thus, social security is intended
to provide protection against contingencies that impair a
person’s capacity to actively participate in work.
62. In the aforesaid context, maternity is one such contingency, as
it involves temporary physical, emotional, and economic
vulnerability. In other words, maternity benefit form an integral
component of the social security framework, aimed at ensuring
economic security, safeguarding maternal health, and
promoting welfare of the child.
W.P. (C) No. 960 of 2021 Page 30 of 99
63. In this backdrop, we shall now address the first submission
canvassed on behalf of the petitioner with regard to the violation
of Article 14 of the Constitution. It was submitted that Section
60(4) of the 2020 Code creates an unreasonable classification
among adoptive mothers. In other words, the petitioner argued
that the classification between a woman adopting a child aged
less than three months and a woman adopting a child aged three
months or more is artificial and violative of Article 14.
i. Examining validity of the impugned provision through the
test of permissible classification
64. The law on classification is well settled and does not require
restatement in extenso. While Article 14 of the Constitution
permits classification, such classification must rest upon a real
and substantial distinction. In other words, the differential
treatment accorded to one group vis-à-vis another must bear a
rational relation to the object sought to be achieved by the
legislature. Any classification lacking a substantial and
intelligible basis is arbitrary and violative of the equality
guarantee under the Constitution. Thus, Article 14 mandates
that the law must operate equally on all persons under like
circumstances .
65. Although classification by its very nature is discriminatory, yet
equality, in cases involving classification, is treatment afforded
after due regard to the nature, attainment or circumstances of
the group concerned, so as to cater to its specific needs. It could
be said that classification is an expression of substantive
W.P. (C) No. 960 of 2021 Page 31 of 99
equality. We say so because individuals form a group, and a
group is classified on the basis of some qualities or
characteristics found in all persons and not in others, and such
classification must have relation to the object of the legislation.
In this context, this Court in State of W.B. v . Anwar Ali
Sarkar , reported in (1952) 1 SCC 1 , observed thus:-
“ 85. It is now well established that while Article 14 is
designed to prevent a person or class of persons from
being singled out from others similarly situated for the
purpose of being specially subjected to discriminating
and hostile legislation, it does not insist on an “abstract
symmetry” in the sense that every piece of legislation
must have universal application. All persons are not, by
nature, attainment or circumstances, equal and the
varying needs of different classes of persons often
require separate treatment and, therefore, the
protecting clause has been construed as a guarantee
against discrimination amongst equals only and not as
taking away from the State the power to classify
persons for the purpose of legislation. This
classification may be on different bases. It may be
geographical or according to objects or occupations or
the like. Mere classification, however, is not enough to
get over the inhibition of the article. The classification
must not be arbitrary but must be rational, that is to
say, it must not only be based on some qualities or
characteristics which are to be found in all the persons
grouped together and not in others who are left out but
those qualities or characteristics must have a
reasonable relation to the object of the legislation. In
order to pass the test, two conditions must be fulfilled,
namely, (1) that the classification must be founded on
an intelligible differentia which distinguishes those
that are grouped together from others, and (2) that that
differentia must have a rational relation to the object
sought to be achieved by the Act. The differentia which
is the basis of the classification and the object of the
Act are distinct things and what is necessary is that
there must be a nexus between them. In short, while
W.P. (C) No. 960 of 2021 Page 32 of 99
the article forbids class legislation in the sense of
making improper discrimination by conferring
privileges or imposing liabilities upon persons
arbitrarily selected out of a large number of other
persons similarly situated in relation to the privileges
sought to be conferred or the liability proposed to be
imposed, it does not forbid classification for the purpose
of legislation, provided such classification is not
arbitrary in the sense I have just explained. The
doctrine, as expounded by this Court in the two cases I
have mentioned, leaves a considerable latitude to the
Court in the matter of the application of Article 14 and
consequently has the merit of flexibility. ”
(Emphasis supplied)
State
66. We may refer to and rely upon the decision of this Court in
of Gujarat v . Shri Ambica Mills Ltd. , reported in (1974) 4
SCC 656 , wherein a Constitution Bench explained the
characteristics of “reasonable classification”. It stated that a
classification would be termed reasonable when it includes all
those who are similarly situated with regards to the purpose of
such classification and none who are not. In other words, a
classification must not either be under inclusive or over
inclusive. The relevant observations read thus:-
“ 53. The equal protection of the laws is a pledge of the
protection of equal laws. But laws may classify. And
the very idea of classification is that of inequality. In
tackling this paradox the Court has neither abandoned
the demand for equality nor denied the legislative right
to classify. It has taken a middle course. It has resolved
the contradictory demands of legislative specialization
and constitutional generality by a doctrine of
reasonable classification. [ See Joseph Tussman and
Jacobusten Brook The Equal Protection of the Law, 37
California Rev 341]
W.P. (C) No. 960 of 2021 Page 33 of 99
54. A reasonable classification is one which includes
all who are similarly situated and none who are not.
The question then is: what does the phrase “similarly
situated” mean? The answer to the question is that we
must look beyond the classification to the purpose of
the law. A reasonable classification is one which
includes all persons who are similarly situated with
respect to the purpose of the law. The purpose of a law
may be either the elimination of a public mischief or the
achievement of some positive public good.
55. A classification is under-inclusive when all who are
included in the class are tainted with the mischief but
there are others also tainted whom the classification
does not include. In other words, a classification is bad
as under-inclusive when a State benefits or burdens
persons in a manner that furthers a legitimate purpose
but does not confer the same benefit or place the same
burden on others who are similarly situated. A
classification is over-inclusive when it includes not only
those who are similarly situated with respect to the
purpose but others who are not so situated as well. In
other words, this type of classification imposes a
burden upon a wider range of individuals than are
included in the class of those attended with mischief at
which the law aims. Herod ordering the death of all
male children born on a particular day because one of
them would some day bring about his downfall
employed such a classification.
xxx
64. Laws regulating economic activity would be viewed
differently from laws which touch and concern freedom
of speech and religion, voting, procreation, rights with
respect to criminal procedure, etc. The prominence
given to the equal protection clause in many modern
opinions and decisions in America all show that the
Court feels less constrained to give judicial deference to
legislative judgment in the field of human and civil
rights than in that of economic regulation and that it is
making a vigorous use of the equal protection clause to
strike down legislative action in the area of
W.P. (C) No. 960 of 2021 Page 34 of 99
fundamental human rights. [ See “Developments Equal
Protection”, 32 Harv, Law Rev 1065, 1127]
Equal protection clause rests upon two largely
subjective judgments: one as to the relative
invidiousness of particular differentiation and the
other as to the relative importance of the subject
with respect to which equality is sought. [ See Cox,
“The Supreme Court Foreword”, 1965 Term, 80
Harv. Daw Rev. 91-95]
65. The question whether, under Article 14, a
classification is reasonable or unreasonable must, in
the ultimate analysis depend upon the judicial
approach to the problem. The great divide in this area
lies in the difference between emphasising the
actualities or the abstractions of legislation. The more
complicated society becomes, the greater the diversity
of its problems and the more does legislation direct
itself to the diversities.
Statutes are directed to less than universal
situations. Law reflects distinctions that exist in fact
or at least appear to exist in the judgment of
legislators — those whose have the responsibility
for making law fit fact. Legislation is essentially
empiric. It addresses itself to the more or less crude
outside world and not to the neat, logical models of
the mind. Classification is inherent in legislation. To
recognise marked differences that exist in fact is
living law; to disregard practical differences and
concentrate on some abstract identities is lifeless
logic. [ See the observations of Justice Frankfurter
in Morey v. Doud, 354 US 457, 472 (1957)] ”
(Emphasis supplied)
67. What flows from the aforesaid decision is that under-
inclusiveness in classification refers to a situation when
classification confers benefits on certain persons in furtherance
of a legitimate purpose but fails to extend the same benefits to
W.P. (C) No. 960 of 2021 Page 35 of 99
others who are similarly situated, without a justification. Such
a manner of classification renders it unreasonable and volatile
when examined through the test of permissible classification
under Article 14.
68. In this regard, it would be apposite to refer to the decision in
Pravinsinh Indrasinh Mahida v . State of Gujarat , reported
in 2021 SCC OnLine Guj 1293 , wherein the Gujarat High Court
while dealing with the challenge to the legality and
constitutional validity of the Gujarat Cooperative Societies
(Amendment) Act, 2019, emphasized on the principle of
Shri Ambica
“similarly situated” expounded by this Court in
Mills Ltd. ( supra ). The State attempted to exclude sugar
factories from the purview of Section 74C of the said Act. The
Court found the classification of sugar factories arbitrary,
looking at the intention of the Section 74C and the object sought
to be achieved through the classification, i.e., administrative
exigency or saving money.
In this context, the Court noted that a reasonable
classification is one which includes all individuals who are
similarly situated with regards to the purpose of the law. It was
observed that the government cannot create a classification by
excluding one category when both categories belong to the same
genus. The relevant observations read thus:-
“ 75. Thus, the ratio discernible from the above referred
judgment of the Supreme Court and the same can be
made applicable to the case on hand is that the
Government cannot create sub-classification thereby
excluding one sub-category, even when both the sub-
categories are of the same genus. If that is done, it
W.P. (C) No. 960 of 2021 Page 36 of 99
would be considered as violating the equality clause
enshrined in Article 14 of the Constitution. The
Supreme Court proceeded to observe that the judicial
review of such notifications is permissible in order to
undertake the scrutiny as to whether the notification
results in invidious discrimination between two
persons though they belong to the same class. of
course, in the case on hand, the State has tried very
hard to persuade this Court to take the view that the
Sugar societies are not of the same genus and have
tried to distinguish between the federal and primary
societies. This issue we shall deal with a little later. The
Supreme Court, ultimately, held that the notification
should be applied to the entire class. If the Government
fails to support its action of classification on the
touchstone of the principle whether the classification is
reasonable having an intelligible differentia and a
rational basis germane to the purpose, the
classification has to be held as arbitrary and
discriminatory.
xxx
80. Article 14 has two clear facets which are invalid.
One is over classification and the other is under
classification, which is otherwise, over inclusiveness or
under inclusiveness. The judicial review of over
classification should be done very strictly. In the cases
of under classification when the complaint is either by
those who are left out or those who are in i.e. that the
statute has roped him in, but a similarly situated
person has been left out, it would be under inclusion. It
is to say that you ought to have brought him in to make
the classification reasonable. It is in such cases that the
Courts have said that who should be brought in, should
be left to the wisdom of the legislature because it is
essentially a stage where there should be an element
of practicality. Therefore, the cases of under inclusion
can be reviewed in a little liberal manner. The under
inclusion argument should not very readily be accepted
by the Court because the stage could be experimental.
For instance, if the argument is in context with Section
74C that some other category of society has been left
out, the Court would say that it is under inclusion. The
W.P. (C) No. 960 of 2021 Page 37 of 99
legislature does not have to bring in everybody to make
it reasonable. The case on hand is one of active
exclusion. Had the Sugar societies been left out or the
voters been excluded in Section 74C at the first
instance and they came in to say that the State ought
to have included us, the test would have been very
strict, not that it would be impervious to review. The
Court would be justified in not entertaining such
complaint saying that the State should be given some
freedom whom to include or whom not to include. The
Sugar societies have come at the stage where they are
excluded. They are saying that having treated us as
one, you cannot exclude us now in an arbitrary
manner. This is not exclusion or inclusion at the
threshold or the first stage. This is active positive
leaving out - single legislation - single category
legislation - constantly eliminating where the principles
do not apply of that of under inclusion. ”
(Emphasis supplied)
69. At this stage, it would be apposite to state that, in order to pass
the test of permissible classification, the distinction drawn by
the impugned provision or legislation must not only bear a
rational nexus with the object sought to be achieved by the Act,
but the classification must also be inclusive of all similarly
situated individuals.
70. We may look at the decision in Citizenship Act, 1955, Section
6-A, In re , reported in (2024) 16 SCC 105 , wherein this Court
held that the factors for determining a class are decisive in
assessing whether a provision is under-inclusive or over-
inclusive. Such factors must bear a rational nexus with the
object and intent of the statute and must be in consonance with
constitutional principles.
W.P. (C) No. 960 of 2021 Page 38 of 99
It was further held that it is incumbent on the State to
include all persons within the classification who satisfy the
prescribed criteria for classification. Any exclusion of similarly
situated individual must be justified, and the degree of
justification required to be discharged by the State is
substantially higher in a matter affecting individual rights than
that applicable in matters of economic policy. The relevant
observations read thus:-
“ 472.3. The determination of the yardstick for
classification will help in the assessment of whether a
provision is underinclusive or overinclusive. The
yardstick must have a nexus with the object and must
be in consonance with constitutional principles. If the
yardstick satisfies the test, then the State must
determine if all persons/situations similarly situated
based on the yardstick have been included. The State
must on the submission of cogent reason justify if those
who are similarly situated have not been included
(underinclusiveness) or those who are not similarly
situated have been included (overinclusiveness). The
degree of justification that the State is required to
discharge depends on the subject-matter of the law,
that is whether the matter deals with economic policy
or fiscal matters, whether it is a beneficial provision
such as a labour provision or whether it deals with the
core or innate traits of individuals. The degree of
justification is the least for economic policy, higher for
a beneficial provision and the highest if it infringes
upon the core or innate trait of individuals .”
(Emphasis supplied)
71. In the aforesaid context, the observations in Pravinsinh
Indrasinh Mahida ( ), succinctly explain the distinction
supra
between the intent of the legislation and legislative intention. It
underscored that while the legislation intends to remedy a
W.P. (C) No. 960 of 2021 Page 39 of 99
malady, the legislative intention related to the meaning or
exposition of the remedy. Insofar as the test for permissible
classification is concerned, the rational nexus of the
classification is juxtaposed against the intention of the
legislation. The relevant observations read thus:-
“ 84. In the aforesaid context, we may refer to and rely
upon a decision of the Supreme Court in the case
of Hiral P. Harsora v. Kusum Narottamdas
Harsora reported in (2016) 10 SCC 165. Hiral Harsora
was a case which decided an important question as to
the constitutional validity of Section 2(q) of the
Protection of Women from Domestic Violence Act, 2005.
The appeal before the Supreme Court raised an
important question concerning the area of protection of
the female sex generally. The Supreme Court first tried
to ascertain the object which was sought to be achieved
by the 2005 Act. In doing so, the Court looked into the
Statement of objects and reasons, the preamble and
the provisions of the 2005 Act as a whole. In doing so,
the Supreme Court followed the law as discussed in
paras 13 and 14. It reads thus:
“ 13. In Shashikant Laxman Kale v. Union of
India, (1990) 2 SCR 441, this Court was faced with
the constitutional validity of an exemption section
contained in the Indian Income Tax Act, 1961. After
referring in detail to Re : Special Courts Bill, (1979)
1 SCC 380 : (1979) 2 SCR 476 and the propositions
laid down therein on Article 14 generally and a few
other judgments, this Court held:—
“15. It is first necessary to discern the true purpose
or object of the impugned enactment because it is
only with reference to the true object of the
enactment that the existence of a rational nexus of
the differentia on which the classification is based,
with the object sought to be achieved by the
enactment, can be examined to test the validity of
the classification. In Francis Bennion's Statutory
Interpretation, (1984 edn.), the distinction between
the legislative intention and the purpose or object of
W.P. (C) No. 960 of 2021 Page 40 of 99
the legislation has been succinctly summarised at
p. 237 as under:
“The distinction between the purpose or object
of an enactment and the legislative intention
governing it is that the former relates to the
mischief to which the enactment is directed
and its remedy, while the latter relates to the
legal meaning of the enactment.”
16. There is thus a clear distinction between the
two. While the purpose or object of the legislation is
to provide a remedy for the malady, the legislative
intention relates to the meaning or exposition of the
remedy as enacted. While dealing with the validity
of a classification, the rational nexus of the
differentia on which the classification is based has
to exist with the purpose or object of the legislation,
so determined. The question next is of the manner in
which the purpose or object of the enactment has to
be determined and the material which can be used
for this exercise.[…]
xxx
86. The constitutional principle of equality is inherent
in the rule of law. The rule of law is satisfied when laws
are applied or enforced equally, that is, even handedly,
free of bias and without irrational distinction. The
concept of equality allows differential treatment but it
prevents distinctions that are not properly justified.
Justification requires each case to be decided on a
case-to case basis. In Subramanian Swamy's
case (supra), one set of bureaucrats of the level of Joint
Secretary and above working with the Central
Government were offered the protection under Section
6-A while the same level of officers who were working
in the States were not afforded with the same
protection though both the classes of those officers
were accused of an offence under the Act, 1988 and
inquiry/investigation into such allegations were to be
carried out. The issue before the Supreme Court was
whether the classification was based on intelligible
differentia. The Supreme Court took the view that the
classification could not be said to be based on
intelligible differentia because the provisions in Section
W.P. (C) No. 960 of 2021 Page 41 of 99
6-A of the Act, 1988 impeded tracking down the corrupt
senior bureaucrats as without previous approval of the
Central Government, the CBI could not have even
conducted a preliminary inquiry much less an
investigation into the allegations. The Supreme Court
took notice of the fact that the protection in Section 6-A
had the propensity of shielding the corrupt. The
Supreme Court held that the object of Section 6-A itself
was discriminatory and such discrimination could not
have been justified on the ground that there was a
reasonable classification because it had rational
relation to the object sought to be achieved. Ultimately,
the Supreme Court held that although every
differentiation may not be a discrimination, yet the
differentiation must be founded on pertinent and real
differences as distinguished from irrelevant and
artificial ones. In the case on hand, we have explained
how the differentiation amounts to discrimination and
why the differentiation could be said to be irrelevant
and artificial. ”
(Emphasis supplied)
72. With a view to dispel any doubt and lend clarity, we deem it
appropriate to observe that the legislature is within its right to
create a classification and decide the basis thereof. However, the
scope and limits of judicial scrutiny in examining such
classification must be borne in mind. The degree of deference,
or rather restraint exercised by courts in case of classification
by the State is elucidated by this Court in State of T.N. v .
National South Indian River Interlinking Agriculturist
Assn. , reported in (2021) 15 SCC 534 . There is no doubt that
courts ordinarily accord a high degree of deference to legislative
decisions with regards to economic matters. However, when
classification affects substantive rights and operates in an
under-inclusive manner, judicial deference stands
W.P. (C) No. 960 of 2021 Page 42 of 99
correspondingly diminished. The relevant observations read
thus:-
“ 11. However, it is settled law that the Court cannot
interfere with the soundness and wisdom of a policy. A
policy is subject to judicial review on the limited
grounds of compliance with the fundamental rights and
other provisions of the Constitution. [Asif
Hameed v. State of J&K, 1989 Supp (2) SCC 364 : 1
SCEC 358; Shri Sitaram Sugar Co. Ltd. v. Union of
India, (1990) 3 SCC 223; Khoday Distilleries
Ltd. v. State of Karnataka, (1996) 10 SCC
304; Balco Employees' Union v. Union of India, (2002)
2 SCC 333; State of Orissa v. Gopinath Dash, (2005) 13
SCC 495 : 2006 SCC (L&S) 1225] It is also settled that
the Courts would show a higher degree of deference to
matters concerning economic policy, compared to other
matters of civil and political rights. In R.K.
Garg v. Union of India [R.K. Garg v. Union of India,
(1981) 4 SCC 675 : 1982 SCC (Tax) 30] , this Court
decided on the constitutional validity of the Special
Bearer Bonds (Immunities and Exemptions) Act, 1981.
The challenge to the statute was on the principal
ground that it was violative of Article 14 of the
Constitution. Rejecting the challenge, the Constitution
Bench observed that laws relating to economic
activities must be viewed with greater latitude and
deference when compared to laws relating to civil rights
such as freedom of speech : (SCC pp. 690-91, para 8)
“8. Another rule of equal importance is that laws
relating to economic activities should be viewed with
greater latitude than laws touching civil rights such
as freedom of speech, religion, etc. It has been said
by no less a person than Holmes, J. [Ed. : The
reference appears to be to Bain Peanut Co. of
Texas v. Pinson, 1931 SCC OnLine US SC 34 : 7 L
Ed 482 : 282 US 499 (1931). See also Missouri,
Kansas & Texas Railway Co. of Texas v. Clay May,
1904 SCC OnLine US SC 118 : 48 L Ed 971 : 194 US
267, 269 (1904).] , that the legislature should be
allowed some play in the joints, because it has to
deal with complex problems which do not admit of
W.P. (C) No. 960 of 2021 Page 43 of 99
solution through any doctrinaire or straitjacket
formula and this is particularly true in case of
legislation dealing with economic matters, where,
having regard to the nature of the problems required
to be dealt with, greater play in the joints has to be
allowed to the legislature. The court should feel
more inclined to give judicial deference to legislative
judgment in the field of economic regulation than in
other areas where fundamental human rights are
involved. Nowhere has this admonition been more
felicitously expressed than
in Morey v. Doud [Morey v. Doud, 1957 SCC OnLine
US SC 105 : 1 L Ed 2d 1485 : 354 US 457 (1957)]
where Frankfurter, J., said in his inimitable style:
‘In the utilities, tax and economic regulation cases,
there are good reasons for judicial self-restraint if
not judicial deference to legislative judgment. The
legislature after all has the affirmative
responsibility. The courts have only the power to
destroy, not to reconstruct. When these are added
to the complexity of economic regulation, the
uncertainty, the liability to error, the bewildering
conflict of the experts, and the number of times the
Judges have been overruled by events — self-
limitation can be seen to be the path to judicial
wisdom and institutional prestige and stability.’”
xxx
32. While non-classification arbitrariness is tested
based on the proportionality test, where the means are
required to be proportional to the object, classification
arbitrariness is tested on the rational nexus test, where
it is sufficient if the means share a “nexus” with the
object. The degree of proof under the test would impact
the judgment of this Court on whether the law is under-
inclusive or over-inclusive. A statute is “under-
inclusive” if it fails to regulate all actors who are part of
the problem. It is “over-inclusive” if it regulates actors
who are not a part of the problem that the statute seeks
to address. The determination of under-inclusiveness
and over-inclusiveness, and degree of deference to it is
dependent on the relationship prong (“rational nexus”
or “proportional”) of the test.
W.P. (C) No. 960 of 2021 Page 44 of 99
33. The nexus test, unlike the proportionality test, is not
tailored to narrow down the means or to find the best
means to achieve the object. It is sufficient if the means
have a “rational nexus” to the object. Therefore, the
courts show a greater degree of deference to cases
where the rational nexus test is applied. A greater
degree of deference is shown to classification because
the legislature can classify based on the degrees of
harm to further the principle of substantive equality,
and such classification does not require mathematical
precision. The Indian courts do not apply the
proportionality standard to classificatory provisions.
Though the two-Judge Bench in Anuj Garg [Anuj
Garg v. Hotel Assn. of India, (2008) 3 SCC 1]
articulated the proportionality standard for protective
discrimination on the grounds in Article 15; and
Malhotra, J. in Navtej Singh Johar [Navtej Singh
Johar v. Union of India, (2018) 10 SCC 1 : (2019) 1 SCC
(Cri) 1] held that less deference must be allowed when
the classification is based on the “innate and core trait”
of an individual, this is not the case to delve into it.
Since the classification in the impugned scheme is
based neither on the grounds in Article 15 nor on the
“innate and core trait” of an individual, it cannot be
struck down on the alleged grounds of under-
inclusiveness and over-inclusiveness. ”
(Emphasis supplied)
73. What is discernable from the aforesaid discussion is that the
distinction created by Section 60(4) of the 2020 Code between a
woman legally adopting a child below the age of three months
and those who adopt a child aged three months or above must
have a rational nexus with the intention and object of the 2020
Code.
W.P. (C) No. 960 of 2021 Page 45 of 99
74. The learned ASG on behalf of the respondents submitted that
the impugned provision has been framed with an objective to
strike a balance between the rights of adoptive mothers and the
concerns of the employers. He further submitted that the
classification under the impugned provision is reasonable as a
child older than three months does not have the same intensive
dependency on the caregiver.
75. Undoubtedly, the fundamental objective of the 2020 Code is to
recognize human dignity by guaranteeing labour and economic
protection to persons who are temporarily deprived of their
capacity to fully participate in the workforce. There is no
gainsaying that the protection granted earlier under the MB Act,
and now subsumed within the 2020 Code, has been conceived
with due regard to the multifaceted role of a woman as a mother.
76. The legislation acknowledges the indispensable contribution of
a woman in familial stability, her responsibility in nurturing and
caring for a child, and the physical and emotional demands
attached to motherhood. By providing income security and
institutional support during this critical phase, the legislation
seeks to ensure that motherhood does not operate as a source
of disadvantage at a work place, but is instead accommodated
as a socially valuable function warranting protection and
respect.
77. The purpose of maternity leave neither varies with the nature of
employment nor with the manner in which the child is brought
W.P. (C) No. 960 of 2021 Page 46 of 99
into the life of the mother. When we look closely, the natural
effect of maternity benefit is to facilitate the physical and
emotional adjustment of a mother, ensure the welfare and
holistic development of a child, and promote bonding between
parents and children during the crucial initial phase of family
integration.
78. Thus, taking into consideration the aforementioned object and
intention of the 2020 Code, could it be said that women adopting
a child aged three months or above do not require the same
protection as is afforded to women adopting a child below the
age of three months? The answer is an emphatic ‘No’. We say so
because the object of maternity benefit is not associated with
the biological process of childbirth alone but also takes into
account a holistic understanding of attainment of motherhood
and consequent fulfillment of the role.
79. What flows from the aforesaid is that the need for economic
security, institutional support, and protection of dignity does
not diminish merely on account of the age of the child at the
time of adoption. The necessity of nurturing, care, and family
integration remains equally relevant and pressing irrespective of
whether the adopted child is below or above the age of three
months.
80. In light of the object of the 2020 Code, women who adopt a child
aged three months or above are similarly situated to women who
adopt a child below the age of three months, insofar as their
W.P. (C) No. 960 of 2021 Page 47 of 99
roles, responsibilities, and caregiving obligations are concerned.
The essential attributes, capacities, and commitments of
adoptive mothers do not undergo any material change merely on
account of the age of the child at the time of adoption and the
immediate period following the adoption.
81. We are of the considered view that the distinction drawn by
Section 60(4) of the 2020 Code, does not have a rational nexus
with the underlying beneficial object of the statute. The
submission canvassed on behalf of the respondents proceeds on
a narrow and restrictive understanding of adoption by limiting
it to “caregiving responsibilities” towards an infant. Such a view
disregards the bilateral process of adjustment and integration of
the adopted child with the adoptive family. This disparity not
only marginalizes the role that adoptive parents play in the life
of the child but also reduces the recognition of their
responsibilities.
82. While adoption may not involve the physical tribulations
associated with the biological process of giving birth, or
intensified caregiving responsibilities for an infant, the
psychological and emotional factors assume significant
importance, thereby requiring the mother to devote time to forge
the bond of motherhood with the adopted child. A general
approach which fails to consider the nuances associated with
modern parenting would denigrate the understanding of
motherhood, which flows from the status of being a mother and
W.P. (C) No. 960 of 2021 Page 48 of 99
not merely from the manner of its attainment. Such an approach
would also inevitably disregard the welfare of the child.
83. The process of adoption itself entails significant emotional,
psychological, and practical adjustments for both the child and
the adoptive mother. Children adopted at any age require
sustained care, reassurance, and stable parental presence to
overcome past vulnerabilities and integrate into a new familial
environment. This is even more imperative to allow such
mothers to avail themselves of the leave. In such circumstances,
denying maternity benefit solely on the basis of an arbitrary age
threshold disregards these essential aspects of adoption and
undermines the very purpose of social welfare legislation.
84. The absence of an age limit assumes greater importance when
we consider the position of children with disabilities. It is a
matter of common knowledge that children with disabilities
often wait considerably longer to be adopted as compared to
other children. The process of identifying adoptive parents,
ensuring that they are capable of providing the required care,
and completing the necessary formalities would ordinarily take
longer.
85. In such circumstances referred to above, confining the benefit
of maternity leave where a child is adopted at a prescribed age
would operate to the detriment of children with disabilities. It
would also discourage the prospective parents from adopting
children who require their presence during the initial period of
W.P. (C) No. 960 of 2021 Page 49 of 99
adjustment. The need for parental presence, patience, and
emotional support is often more pronounced in the case of
children with disabilities. Thus, in such circumstances, in
absence of any parental leave, maternity benefit leave enables
the adoptive mothers to devote adequate time towards
nurturing, rehabilitation, and emotional bonding with the child.
86. This issue also assumes a distinct dimension in the case of
single adoptive mothers. Unlike in a traditional family setup
where caregiving responsibilities may be shared between two
parents, a single adoptive mother bears the entire responsibility
of integrating the child into the family environment while
simultaneously discharging her professional obligations.
87. In the absence of adequate maternity benefit, a single adoptive
mother may be compelled to choose between her employment
and the immediate needs of the adopted child. Such a
predicament undermines the very purpose of social welfare
legislation designed to support working women. The law cannot
overlook the practical realities. In such circumstances,
extending the benefit of maternity leave is not merely a matter
of convenience but a necessary support that enables the woman
to discharge her parental responsibilities while securing her
economic independence.
88. In such a view of the matter, an age limit fails to account for the
diverse realities of adoption. The needs of children and adoptive
families are neither uniform nor reducible to an understanding
W.P. (C) No. 960 of 2021 Page 50 of 99
of adoption in a typical familial structure. A provision that fails
to accommodate these realities undermines the objective of the
legislation and is prone to constitutional attacks.
89. Another aspect which deserves to be mentioned is the absence
of any graded entitlement to maternity benefit in the impugned
provision. In other words, while women adopting children
younger than three months are entitled to maternity benefit for
a period of 12 weeks, women adopting children even a day older
than three months are not entitled to maternity benefit to any
extent. This approach adopted by the legislature while enacting
the impugned provision does not reflect the real-world
requirement of care and nurturing, which does not come to a
sudden halt upon the attainment of a certain mathematical
number, but gradually tapers with the proper integration of the
child with the new environment, especially the parents. While it
could be argued that the legislature could have provided for a
graded entitlement to maternity benefits dependent upon the
age of the child, however, such a situation does not arise for
consideration in lieu of the either-or approach adopted by the
legislature in the impugned provision.
90. The impugned provision also fails in including all those who are
similarly placed, i.e., adoptive mothers. Thus, although the
classification expressed in the words, “ a woman who legally
adopts a child…shall be entitled to maternity benefit for a period
of twelve weeks ”, seeks to give a benefit in recognition of gender
equity, and in that sense, it bears a rational relation to the
W.P. (C) No. 960 of 2021 Page 51 of 99
intention and object of the statute, yet it nonetheless fails to
conform to constitutional principles of equality because it
qualifies such benefit to “ a woman who legally adopts a child
below the age of three months ”. Thus, it leaves all the similarly
situated women who legally adopt a child aged three months or
above.
91. We are of the view that the impugned provision, i.e., Section
60(4) of the 2020 Code, to the extent that it prescribes an age
limit of three months, is discriminatory because first , it does not
disclose a reasonable distinction between women who adopt a
child below the age of three months and those who adopt a child
aged three months or above. Secondly , the particular
differentiation, which is sought to be made, has no nexus with
the object sought to be achieved. Thirdly , the classification
suffers from under-inclusiveness.
92. Section 60(4) of the 2020 Code, in effect, operates unequally
upon adoptive mothers who are similarly situated, resulting in
discrimination without reasonable justification. As a necessary
consequence, Section 60(4) of the 2020 Code violates the
mandate of equality enshrined under Article 14 of the
Constitution. The classification under the Act is palpably
unreasonable and arbitrary.
93. When the Amendment Act, 2017, was introduced by the then
Minister for Labour and Employment, this very issue was raised
during the debates. Although a query was posed regarding the
W.P. (C) No. 960 of 2021 Page 52 of 99
yardstick adopted for capping the age of a child at three months
for an adoptive mother to avail maternity benefit, yet it was left
unanswered. The question reads thus:-
“ […]Apart from that, there is a criterion for the
commissioning mother and for a mother adopting
legally, if I understand it correctly that the child must
be less than three months. Now, what I do not
understand is that what is the reason for that
criteria. Today, if I have four month old child which I
have got through surrogacy or which I have got through
adoption, why should this law discriminate against a
child which is four or five months? If there is any
justification for it, then I hope that the Hon. Minister will
clarify what that justification is.[…] ”
94. Another submission was canvassed by the respondents that in
case an adoptive mother adopts a child aged more than three
months, she can avail benefit of the crèche facilities available at
her establishment. The submission although seemingly appears
to be lucrative yet the same in our considered opinion is flawed
for the following reasons.
95. The limitation of Section 67 of the 2020 Code, in the particular
circumstances, lies in the fact that the statutory obligation of an
establishment to provide crèche facility arises only when there
are fifty employees. A large number of establishments, more
particularly, smaller establishments, therefore fall outside the
ambit of this requirement, leaving a significant section of
working women without access to such facilities.
96. Further, there is no gainsaying that the provision of a crèche
facilities within an establishment is not a substitute for
W.P. (C) No. 960 of 2021 Page 53 of 99
maternity leave. The realization of the right of maternity benefit
must not be contingent on the number of employees. Maternity
leave serves a distinct purpose, as elucidated in the foregoing
paragraphs of this judgment. A crèche facility, on the other
hand, merely provides a place for the child to remain during
working hours and cannot replace the indispensable presence
and care of the mother during this period.
97. When the benefit of maternity leave is not granted to all mothers,
in some situations, she may be compelled either to leave the
child at home, rely on the assistance of an older sibling, or take
the child with them to the workplace, thereby compromising the
child’s health and safety. Where the older sibling is a girl child,
such arrangements often result in her being withdrawn from
school, which reinforces the vicious cycle of gender inequality.
98. In light of the aforesaid discussion, we may look into the decision
of Werner Van Wyk & Ors. v . Minister of Employment and
Labour , reported in [2025] ZACC 20 . The challenge before the
Constitutional Court of South Africa was with regards to the
constitutional validity of Sections 25, 25A, 25B and 25C of the
Basic Conditions of Employment Act (“BCEA”) respectively. The
provisions largely dealt with maternity and parental leave. The
challenge to the provision was on account of the differentiation
between categories of the parents and children, i.e., a child born
by their birth mother, a child born by surrogacy, and an adopted
child. The challenge to Section 25B is of some relevance to us.
Section 25B of the BCEA was challenged as it capped the age of
W.P. (C) No. 960 of 2021 Page 54 of 99
a child being adopted at 2 years in order for the adoptive parent
to avail parental leave. The provision read thus:-
“ Section 25B deals with adoptive parents. It provides:
“(1) An employee, who is an adoptive parent of a
child who is below the age of two, is subject to
subsection (6), entitled to—
(a) adoption leave of at least ten weeks
consecutively; or
(b) the parental leave referred to in section 25A. ”
(Emphasis is ours)
99. In Werner Van Wyk ( supra ), the respondent conceded that the
provision is violative of the right to human dignity of persons,
more particularly, of women who are not biological mothers. The
Court was of the view that the human dignity of such persons is
violated because they are not afforded the same protection as
biological mothers. It indicated how the absence of provision of
parental leave assumes that women are primary caregivers of
children. We shall discuss the importance of paternity leave in
some detail in the latter part of this judgment.
100. The Court applied the principle of permissible classification to
assess whether the differentiation between parents on the basis
of the child’s age was constitutionally and statutorily valid. It
observed that, on account of such differentiation, a child above
the age of two years is denied any opportunity to adjust or
integrate into the adopted family. It was further highlighted, and
rightly so, that imposing an age limit on the child discourages
the prospective parents and reduces the likelihood of such
children being adopted. The relevant observations read thus:-
W.P. (C) No. 960 of 2021 Page 55 of 99
“ 55. It is trite that if section 9 is invoked to attack a
legislative provision or executive conduct on the ground
that it differentiates between people or categories of
people in a manner that amounts to unequal treatment
or unfair discrimination, the first enquiry must be
directed to the question of whether the impugned
provision does, in fact, differentiate between people or
categories of people. Here, the answer must be in the
affirmative. That the provisions differentiate between
categories of adoptive parents and their children on the
basis of age cannot be disputed. Indeed, adoptive
parents of children who are older than two years, and
their children, are treated differently from parents and
children younger than two years .
56. The next enquiry is if the provision does so
differentiate, then in order not to fall foul of section 9(1)
of the Constitution, there must be a rational connection
between the differentiation in question and the
legitimate governmental purpose it is designed to
further or achieve. If it is justified in that way, then it
does not amount to a breach of section 9(1).
xxx
58. The Minister’s arguments in this regard do not hold
water. The age cap set is in respect of children under
the age of two years and the maternity leave has such
an effect that birth parents leave their children who are
much younger than two years. Birth mothers return to
work whilst their children are three to four months old,
unless they make special arrangements with their
employer. If the Minister is concerned about equalising
the two scenarios, it has not been argued why a four,
six or 12-month age cap would be inappropriate. There
is no explanation as to how two years was set as an
appropriate age cap and why it should be regarded as
a reasonable cap. I fail to see the creation of the
“equivalence” alleged by the Minister.
59. I also reject the argument that the differentiation
does not occur in respect of children. Of course, there is
a financial benefit resulting from the UIF claim, but the
adopted children older than two years are treated
W.P. (C) No. 960 of 2021 Page 56 of 99
differently because they are not afforded time to be
with their employed parents when they join their new
families and there is no opportunity afforded for them
to adjust to the new family at all. It also cannot be
gainsaid, as the Commission has argued, that the lack
of parental leave benefits for parents of adopted
children who are two years and older further decreases
the likelihood of such children being adopted because
there is absolutely no leave after such children join
their new family. ”
(Emphasis supplied)
101. The Court further observed that the need for adjustment to a
new environment cannot be negated. It rejected the submission
on behalf of the respondent that the provision attempts to place
adoptive parents on the same pedestal as biological parents.
This meant that the age limit affords similar benefits to different
categories of parents. However, the Court held that the
maternity benefit policy could not be framed in ignorance of the
welfare of the child. In this context, the Court observed thus:-
“ 65. This argument by the Minister is flawed, as
already stated. It does not address the differentiation
between adopted children below the age of two years
and those above it. It focuses on the parents. However,
the focus cannot be on the parents alone to the
exclusion of the children, because the whole regime
around maternity, paternity and adoption leave centres
around both the parents and the children, with the
parents being the givers of nurturing, and the children
being the recipients or beneficiaries. ”
(Emphasis supplied)
102. Most importantly, while equating the leave available to adoptive
parents with that granted to biological parents, the Court
W.P. (C) No. 960 of 2021 Page 57 of 99
emphasized the difference in the underlying purpose of leave in
the case of adoptive parents as opposed to biological parents and
surrogate parents. The Court declared the age limit of two years
as unconstitutional, and left it to the legislature to determine a
reasonable age limit, if any, in accordance with constitutional
principles. The relevant observations read thus:-
“ 71. Furthermore, when analysing whether adoptive
leave should mirror the leave provided to other
categories of parents, it is evident that the two are
fundamentally different. Whilst leave for new-borns is
focused on supporting the immediate and intensive
needs of infancy, adoptive leave also addresses a
broader spectrum of challenges. Adoptive parents,
particularly those caring for children over the age of
two, face the added complexities of facilitating the
child’s integration into a new family and navigating
cultural and environmental shifts. This multifaceted
responsibility, which extends beyond mere physical
care, calls for a tailored leave framework that
recognises the unique demands of adoption, rather
than a one-size-fits-all approach.
72. Therefore, parental leave, irrespective of the child’s
age, is not solely about meeting the needs of the child,
such as nurturing, but also to allow children of different
ages a period to integrate and adapt in the new family
unit. It cannot be disputed that in certain instances
adopted children may require additional care and
support depending on the circumstances they come
from. ”
(Emphasis supplied)
103. It would also be apposite to refer to the decision by the European
Court of Human Rights in Topčić-Rosenberg v. Croatia ,
Application no. 1939/11 . The applicant therein, an adoptive
mother of a three year-old child, was aggrieved by the non-grant
W.P. (C) No. 960 of 2021 Page 58 of 99
of maternity leave, which was contrary to Article 14 read with
Article 8 of the European Convention on Adoption of Children
(“Convention”). Although, the benefit of maternity and parental
leave is governed by the Maternity and Parental Benefits Act,
2009, yet the Court viewed the issue largely through the prism
of Convention. The provisions read thus:-
“ Article 8
“1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national security,
public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights
and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in
[the] Convention shall be secured without
discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or
social origin, association with a national minority,
property, birth or other status.”
104. The Court held that Article 14 read with Article 8 of the
Convention squarely applied to the case. It did not see a
reasonable justification behind difference in treatment between
an adoptive mother and a biological mother insofar as maternity
leave and related allowances of an adoptive mother were
concerned. Such distinction without a justification was held to
be discriminatory. The purpose of such leave in case of an
adoptive child was identified to be care-giving responsibilities,
W.P. (C) No. 960 of 2021 Page 59 of 99
nurturing, and bonding for integration of the child in the
adoptive family. The relevant observations read thus:-
“ 42. The Court considers that when assessing the
domestic practice in the present case, in which the
authorities refused to grant maternity leave to an
adoptive mother, it must take into account two
considerations. First, for an adoptive mother the
purpose of parental or maternity leave is to enable her
to stay at home to look after her child. In this respect
she is in a similar situation to a biological parent (see,
mutatis mutandis, Petrovic, cited above, § 36,
and Konstantin Markin, cited above, § 132). Secondly,
the State should refrain from taking any actions which
could prevent the development of ties between the
adoptive parents and their child and the integration of
the child into the adoptive family (see, mutatis
mutandis, Wagner and J.M.W.L. v. Luxembourg,
no. 76240/01 , §§ 119 and 121, 28 June 2007).
xxx
47. Accordingly, being unable to discern any objective
and reasonable justification for the difference in
treatment of the applicant as an adoptive mother, in
granting her the right to maternity leave after the
adoption of her child, and a biological mother, who had
such a right from the time of the birth, the Court
considers that such a difference in treatment amounted
to discrimination. ”
(Emphasis supplied)
105. The net effect of the aforesaid discussion is that the absence of
a biological connection does not diminish the depth of their
bond. We cannot emphasize more on the fact that motherhood
is ultimately shaped through affection, selfless care, and not
through blood alone. This is one of those instances where law is
confronted by a question which cannot be answered by statute
alone.
W.P. (C) No. 960 of 2021 Page 60 of 99
C. The right to a dignified life for adoptive parents and
adopted child under Article 21 of the Constitution
i. Adoption as an expression of reproductive autonomy
106. The second submission canvassed on behalf of the petitioner is
that the impugned provision violates the adoptive mothers’ and
adoptive children’s right to live life with dignity as enshrined
under Article 21 by denying the mother the right to motherhood
and the adoptive children the right to receive sufficient care to
be rehabilitated and integrated into his/her new family.
107. Although biology has traditionally been the predominant lens
through which kinship and family relationships are understood,
yet non-biological modes of building a family are no less
legitimate or meaningful. The decision to adopt may be
motivated by a variety of personal, social, or humanitarian
reasons. Thus, adoption is an equally valid pathway for the
creation of a family. It is not biology that constitutes a family of
a mother, father, and children, rather, it is the shared meaning,
responsibility, and emotional bonds that sustain such a
relationship. We say so because biological factors, by
themselves, do not determine family behaviour or familial
identity.
108. In such circumstances referred to above, an adopted child is no
different from a so-called “natural” child, the only distinction is
that the process of adoption is more visible and legally
acknowledged. Thus, the act of adoption may carry an equally,
W.P. (C) No. 960 of 2021 Page 61 of 99
if not more, profound affirmation of parenthood. There is no
doubt that sharing of meaning, affection, and responsibility lies
at the heart of both family creation and the adoption process.
109. A three Judge Bench of this Court in Suchita Srivastava v .
Chandigarh Admn. , reported in (2009) 9 SCC 1 , affirmed the
reproductive rights of the appellant-victim, who was allegedly
raped while staying in a Government-run welfare institution,
when she expressed her willingness to carry the pregnancy till
its full term despite being diagnosed with mild mental
retardation.
The Court declined to discount her decision on the ground
that it was “questionable” and instead looked beyond prevailing
social prejudices to accord primacy to her right to make
reproductive choices under Article 21. The Court held that the
Medical Termination of Pregnancy Act, 1971, recognizes and
respects the personal autonomy of a woman in matters relating
to reproduction. The Court further directed the respondents to
ensure that adequate medical facilities were provided so as to
safeguard her health and well-being during the course of the
pregnancy. The relevant observations read thus:-
“ 22. There is no doubt that a woman's right to make
reproductive choices is also a dimension of “personal
liberty” as understood under Article 21 of the
Constitution of India. It is important to recognise that
reproductive choices can be exercised to procreate as
well as to abstain from procreating. The crucial
consideration is that a woman's right to privacy, dignity
and bodily integrity should be respected. This means
that there should be no restriction whatsoever on the
exercise of reproductive choices such as a woman's
W.P. (C) No. 960 of 2021 Page 62 of 99
right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive
methods. Furthermore, women are also free to choose
birth control methods such as undergoing sterilisation
procedures. Taken to their logical conclusion,
reproductive rights include a woman's entitlement to
carry a pregnancy to its full term, to give birth and to
subsequently raise children. However, in the case of
pregnant women there is also a “compelling State
interest” in protecting the life of the prospective child.
Therefore, the termination of a pregnancy is only
permitted when the conditions specified in the
applicable statute have been fulfilled. Hence, the
provisions of the MTP Act, 1971 can also be viewed as
reasonable restrictions that have been placed on the
exercise of reproductive choices.
xxx
59. Lastly, we have urged the need to look beyond
social prejudices in order to objectively decide whether
a person who is in a condition of mild mental
retardation can perform parental responsibilities.
60. The findings recorded by the expert body which
had examined the victim indicate that the continuation
of the pregnancy does not pose any grave risk to the
physical or mental health of the victim and that there is
no indication that the prospective child is likely to suffer
from a congenital disorder. However, concerns have
been expressed about the victim's mental capacity to
cope with the demands of carrying the pregnancy to its
full term, the act of delivering a child and subsequent
childcare. In this regard, we direct that the best medical
facilities be made available so as to ensure proper care
and supervision during the period of pregnancy as well
as for post-natal care. ”
(Emphasis supplied)
110. We may look into the decision of K.S. Puttaswamy (Privacy-
9J.) v . Union of India , reported in (2017) 10 SCC 1 , wherein
this Court recognized the multifaceted nature of the right to
W.P. (C) No. 960 of 2021 Page 63 of 99
privacy, which encompasses, , decisional autonomy in
inter alia
matters relating to intimate personal choices. Such autonomy
includes decisions governing reproduction and family life,
thereby affirming the individual’s freedom to make choices
concerning procreation and parenthood without unwarranted
State interference. The relevant observations read thus:-
“ 248. Privacy has distinct connotations including (i)
spatial control; (ii) decisional autonomy; and (iii)
informational control. [ Bhairav Acharya, “The Four
Parts of Privacy in India”, Economic & Political
Weekly (2015), Vol. 50 Issue 22, at p. 32.] Spatial
control denotes the creation of private spaces.
Decisional autonomy comprehends intimate personal
choices such as those governing reproduction as well
as choices expressed in public such as faith or modes
of dress. Informational control empowers the individual
to use privacy as a shield to retain personal control over
information pertaining to the person.[…] ”
(Emphasis supplied)
111. In X2 v . State (NCT of Delhi) , reported in (2023) 9 SCC 433 ,
wherein one of us, J. B. Pardiwala, J., was a part of the Bench,
observed that the bouquet of reproductive rights encompasses
at the very least the right of women to have or not have children.
The Court emphasized that reproductive autonomy forms an
integral part of personal liberty and decisional autonomy under
Article 21 of the Constitution. The relevant observations read
thus:-
“ 101. The ambit of reproductive rights is not restricted
to the right of women to have or not have children. It
also includes the constellation of freedoms and
entitlements that enable a woman to decide freely on
all matters relating to her sexual and reproductive
W.P. (C) No. 960 of 2021 Page 64 of 99
health. Reproductive rights include the right to access
education and information about contraception and
sexual health, the right to decide whether and what
type of contraceptives to use, the right to choose
whether and when to have children, the right to choose
the number of children, the right to access safe and
legal abortions, and the right to reproductive
healthcare. Women must also have the autonomy to
make decisions concerning these rights, free from
coercion or violence.
102. Zakiya Luna has, in a 2020 publication, argued
that reproduction is both biological and political. [
Zakiya Luna, Reproductive Rights as Human Rights :
Women of Color and Fight for Reproductive Justice
(NYU Press, 2020).] According to Luna, it is biological
since physical bodies reproduce, and it is political since
the decision on whether to reproduce or not is not solely
a private matter. This decision is intimately linked to
wider political, social, and economic structures. A
woman's role and status in family, and society
generally, is often tied to childbearing and ensuring the
continuation of successive generations. ”
(Emphasis supplied)
112. What can be discerned from the above discussion is that when
family structures and modes of parenthood have evolved and
diversified, parenthood is not confined to the biological act of
giving birth. It includes a broader spectrum of choices through
which individuals realize their aspiration to build a family. Thus,
an atypical or unconventional familial setup does not strip away
the rights guaranteed by the Constitution.
113. In the aforesaid context, reproductive autonomy, therefore,
cannot be narrowly understood as being limited to biological
W.P. (C) No. 960 of 2021 Page 65 of 99
reproduction alone. Adoption, too, represents a conscious and
meaningful exercise of the choice to create and nurture a family,
and must be viewed as falling within the broader spectrum of
reproductive decision-making.
114. The protection of maternity benefit cannot be confined keeping
in mind the age of the child. More so, when this benefit seeks to
support motherhood and the welfare of the child, it must extend
to adoptive mothers who undertake the equally significant
responsibilities of nurturing and raising a child.
115. We are at one with the learned counsel appearing on behalf of
the petitioner that the impugned provision, by stipulating an age
limit, fails to recognize the right of reproductive autonomy of
those adoptive mothers who adopt a child aged three months or
more. It denudes such adoptive mothers of the ability to
meaningfully exercise and enjoy their right to decisional
autonomy, dignity, and bodily integrity under Article 21.
116. What flows from the aforesaid discussion and need not be
elaborated more is that the decision to have children is not
confined to the biological birth. The choice to bring a child into
one’s life may also manifest through non-biological means such
as adoption, which equally reflects an individual’s autonomy in
matters of parenthood and family formation. A mother takes
birth the day a child comes into her life. While the day of the
entry of the child in the mother’s life slightly varies in case of
biological route of attainment of motherhood, what follows after
W.P. (C) No. 960 of 2021 Page 66 of 99
the coming of the child in the mother’s life is a universal feeling,
shared by all mothers - whether adoptive, surrogate or
biological.
117. Recently, in K. Umadevi ( supra ), Ujjal Bhuyan, J., succinctly
highlighted the constitutional support to social security benefits
through the Directive Principles of State Policy. The relevant
observations read thus:-
“ 30. Article 42 of the Constitution of India which is one
of the directive principles of State policy mandates that
the State shall make provisions for securing just and
humane conditions of work and for maternity relief.
Article 42 is as follows:
“42. Provision for just and humane conditions of
work and maternity relief.—The State shall make
provision for securing just and humane conditions of
work and for maternity relief.”
31. Another directive principle is contained in Article 51
of the Constitution of India. Amongst others, it says
through Article 51(c) that the State shall endeavour to
foster respect for international law and treaty
obligations in the dealings of organised people with one
another. ”
(Emphasis supplied)
ii. Scope and application of the principle of “ best interest of
the child ”
118. For this particular discussion, it would be worthwhile to refer to
the observations made by this Court in Lakshmi Kant Pandey
v . Union of India , reported in ( 1984) 2 SCC 244 , wherein this
Court prior to enactment of the JJ Act took note of the guiding
principles contained in the Declaration of the Rights of the Child
adopted by the United Nations General. The Declaration states
W.P. (C) No. 960 of 2021 Page 67 of 99
that every child must be provided with opportunities and
facilities to enable their development by all possible means, and
best interest of the child shall be the paramount consideration
in all laws and policies concerning children.
This Court categorically observed that in situations where it
is not possible for the biological parents to care for the child, an
adoptive family would be the most appropriate alternative to
provide a loving and nurturing environment. It emphasized that
every child has the right to grow up in a loving and caring family.
The relevant extract reads thus:-
“ 7. There has been equally great concern for the
welfare of children at the international level
culminating in the Declaration of the Rights of the Child
adopted by the General Assembly of the United Nations
on November 20, 1959. The Declaration in its Preamble
points out that “the child, by reason of his physical and
mental immaturity, needs special safeguards and care,
including appropriate legal protection, before as well as
after birth”, and that “mankind owes to the child the
best it has to give” and proceeds to formulate several
Principles of which the following are material for our
present purpose:
“Principle 2.—The child shall enjoy special
protection and shall be given opportunities and
facilities, by law and by other means, to enable him
to develop physically, mentally, morally, spiritually
and socially in a healthy and normal manner and in
conditions of freedom and dignity. In the enactment
of laws for this purpose the best interests of the child
shall be the paramount consideration.
Principle 3.—The child shall be entitled from his
birth to a name and a nationality.
Principle 6.—The child, for the full and harmonious
development of his personality, needs love and
understanding. He shall, wherever possible, grow
up in the care and under the responsibility of his
parents, and in any case in an atmosphere of
W.P. (C) No. 960 of 2021 Page 68 of 99
affection and of moral and material security; a child
of tender years shall not, save in exceptional
circumstances, be separated from his mother.
Society and the public authorities shall have the
duty to extend particular care to children without a
family and to those without adequate means of
support. Payment of State and other assistance
towards the maintenance of children of large
families is desirable.
Principle 9.—The child shall be protected against all
forms of neglect, cruelty and exploitation. He shall
not be the subject of traffic, in any form.
Principle 10.—The child shall be protected from
practices which may foster racial, religious and any
other form of discrimination. He shall be brought up
in a spirit of understanding, tolerance, friendship
among peoples, peace and universal brotherhood
and in full consciousness that his energy and
talents should be devoted to the service of his fellow
men.”
Every child has a right to love and be loved and to grow
up in an atmosphere of love and affection and of moral
and material security and this is possible only if the
child is brought up in a family. The most congenial
environment would, of course, be that of the family of
his biological parents. But if for any reason it is not
possible for the biological parents or other near relative
to look after the child or the child is abandoned and it
is either not possible to trace the parents or the parents
are not willing to take care of the child, the next best
alternative would be to find adoptive parents for the
child so that the child can grow up under the loving care
and attention of the adoptive parents. The adoptive
parents would be the next best substitute for the
biological parents.[…] Such adoption would be quite
consistent with our National Policy on Children because
it would provide an opportunity to children, otherwise
destitute, neglected or abandoned, to lead a healthy
decent life, without privation and suffering arising from
poverty, ignorance, malnutrition and lack of sanitation
and free from neglect and exploitation, where they
would be able to realise “full potential of growth”.[…]
W.P. (C) No. 960 of 2021 Page 69 of 99
(Emphasis supplied)
119. We must now advert to the definition of “ best interest of child ” as
given under the JJ Act. Section 2(9) of the Act reads thus:-
“ (9) “best interest of child” means the basis for any
decision taken regarding the child, to ensure
fulfilment of his basic rights and needs, identity,
social well-being and physical, emotional and
intellectual development ”
(Emphasis is ours)
120. Further, Section 3 of the JJ Act states that all the authorities
while implementing the provisions of JJ Act shall be guided by
the principle of best interest of child. The relevant part of the
provision reads thus:-
“( iv) Principle of best interest: All decisions regarding
the child shall be based on the primary
consideration that they are in the best interest of the
child and to help the child to develop full potential. ”
121. We may also look into the relevant regulations of the CARA
Regulations guided by the principle of the best interest of the
child. Regulation 3 of the said regulation stipulates one of the
fundamental principles governing adoption, within which the
child’s best interest is considered of paramount importance. The
said regulation reads thus:-
“ 3. Fundamental principles governing adoption.―
The following fundamental principles shall govern
adoptions of children from India, namely:― (a) the
child's best interests shall be of paramount
consideration, while processing any adoption
placement ;”
W.P. (C) No. 960 of 2021 Page 70 of 99
122. Thus, the common thread flowing across the aforesaid provision
is that the principle of the best interests of the child constitutes
the core of all laws and policies concerning children. It reflects
the recognition that children, by reason of their age and
vulnerability, they require special care, protection, and
opportunities for development. The concept of best interest is
not confined to a narrow or immediate understanding of welfare
but rather, it comprises the overall well-being of the child. The
principle of best interest seeks to ensure that every child is
provided with conditions that promote their healthy
development.
123. On a plain reading of the aforesaid provisions, it is limpid that
the guiding premise underlying this principle is that every child
must be given the opportunity to grow in an environment that
nurtures their potential, emotional, and intellectual
development. The family, as a primary unit of care and
protection, plays an indispensable role in fulfilling these
objectives. A stable and harmonious home environment provides
the foundation which enables a child to realize their fullest
potential.
124. In Dasari Anil Kumar v . Child Welfare Project Director ,
reported in 2025 SCC OnLine SC 1689 , the appellants who
were adoptive parents, were aggrieved by the action of police in
taking away the custody of minor children from them without
the authority of law. This Court, having regard to the best
interest of the children, the bonding between the parents and
W.P. (C) No. 960 of 2021 Page 71 of 99
the child, the principle of family responsibility, and the principle
of safety, directed that the custody of the children be restored to
the adoptive parents. The relevant observations read thus:-
“ 11. This is in the interest of the children owing to the
bonding between the “adoptive parents” and the
respective children. This is by following the principle of
the best interest of the child; principle of family
responsibility; principle of safety, positive measures,
principle of Institutionalization as a measure of last
resort, principle of repatriation and restoration, which
are also enunciated as general principles in
Section 3 of the Juvenile Justice (Care and Protection of
Children) Act, 2015.
xxx
14. However, as a safeguard and in the best interest of
the children, we direct that the Member Secretary of the
State Legal Services Authority and/or the Member
Secretary of the District Legal Services Committee,
within whose jurisdiction the “adoptive parents” reside
to seek reports on the welfare and progress of the child
from the respective “adoptive parents” on a quarterly
basis starting from November, 2025 onwards. The
Member Secretary of the State Legal Services Authority
and/or the Member Secretary of the District Legal
Services Committee will also be at liberty to depute a
Child Welfare Expert to inspect the home where the
child and the “adoptive parents” reside. This is to
ensure the welfare and progress of the children who
have been returned to the “adoptive parents”.
15. We again clarify that we have passed the aforesaid
order in the best interest of the children concerned in
the instant case as they have been with their adoptive
parents for a few months upto three years in these
cases .”
(Emphasis supplied)
125. In the aforesaid context, we may also refer to a decision by
Labour Court of South Africa, Durban in MIA v . State
W.P. (C) No. 960 of 2021 Page 72 of 99
Information Technology Agency (Pty) Ltd. , [2015] ZALCD 20 ,
which dealt with the denial of “maternity” leave to a male
employee. The respondent therein refused to grant leave on the
basis that its policies and the Basic Conditions of Employment
Act covered only “female” employees. In the case before the
Court, the surrogacy agreement provided that the applicant
would play the role of usually performed by the birthmother.
In such circumstances, the Court held that maternity leave
is associated to the welfare and health of the child’s mother as
well as best interests of the child. While keeping in mind the best
interest of the child, the Court further held that the policy of the
respondent unfairly discriminates against the applicant and he
should be entitled to “maternity leave”. The relevant
observations read thus:-
“ [13] This approach ignores the fact that the right to
maternity leave as created in the Basic Conditions of
Employment Act in the current circumstances is an
entitlement not linked solely to the welfare and health
of the child’s mother but must of necessity be
interpreted to and take into account the best interests
of the child. Not to do so would be to ignore the Bill of
Rights in the Constitution of the Republic of South
Africa6 and the Children’s Act. Section 28 of the
Constitution provides:
28 Children
(1) every child has a right-
a. …
b. To family care or parental care …
[14] The Children’s Act specifically records not only that
the act is an extension of the rights contained in Section
28 but specifically provides:
Best interests of child paramount.
W.P. (C) No. 960 of 2021 Page 73 of 99
In all matters concerning the care, protection and
well-being of a child the standard that the child’s
best interest is of paramount importance must be
applied.
xxx
[16] The surrogacy agreement specifically provides that
the newly born child is immediately handed to the
commissioning parents. During his evidence the
applicant explained that for various reasons that he
and his spouse had decided that he, the applicant,
would perform the role usually performed by the
birthmother by taking immediate responsibility for the
child and accordingly he would apply for maternity
leave. The applicant explained that the child was taken
straight from the surrogate and given to him and that
the surrogate did not even have sight of the child. Only
one commissioning parent was permitted to be present
at the birth and he had accepted this role.
[17] Given these circumstances there is no reason why
an employee in the position of the applicant should not
be entitled to “maternity leave” and equally no reason
why such maternity leave should not be for the same
duration as the maternity leave to which a natural
mother is entitled. ”
(Emphasis supplied)
126. We may also look into the decision by the House of Lords in In
re P & Ors. , [2008] UKHL 38 , wherein the Court dealt with the
issue of whether an unmarried couple could be excluded from
being considered as adoptive parents of a child. In that case, the
male applicant, who was not the child’s biological father, sought
to be recognized as the father, while the female applicant was
the biological mother of the child. However, article 14 of the
Adoption (Northern Ireland) Order, 1987, states that an
adoption order could be made on the application of more than
one person only if the applicants were a married couple.
W.P. (C) No. 960 of 2021 Page 74 of 99
The Court held that such a rule which excluded unmarried
couples from maintaining an application as a potential adoptive
parent was discriminatory and violative of the fundamental
principle of adoption law, i.e., the best interest of child. It was
held that status of an individual with regards to his marital life
cannot be said to be determinative of the fact of child’s best
interest. Thus, the applicants were held to be entitled to apply
to adopt the child. The following observations of Lord Hoffman
and Lord Mance respectively are worthy of reproduction:-
Lord Hoffman
“ 16. The question therefore is whether in this case there
is a rational basis for having any bright line rule. In my
opinion, such a rule is quite irrational. In fact, it
contradicts one of the fundamental principles stated in
article 9, that the court is obliged to consider whether
adoption “by particular…persons” will be in the best
interest of the child. A bright line rule cannot be justified
on the basis of the needs of administrative convenience
or legal certainty, because the law requires the
interests of each child to be examined on a case-by-
case basis. Gillen J said that “the interests of these two
individual applicants must be balanced against the
interests of the community as a whole.” In this
formulation the interests of the particular child, which
article 9 declares to be the most important
consideration, have disappeared from sight, sacrificed
to a vague and distant utilitarian calculation. That
seems to me to be wrong. If, as may turn out to be the
case, it would be in the interests of the welfare of this
child to be adopted by this couple, I can see no basis
for denying the child this advantage in “the interests of
the community as a whole”.
xxx
18. It is one thing to say that, in general terms, married
couples are more likely to be suitable adoptive parents
than unmarried ones. It is altogether another to say
that one may rationally assume that no unmarried
W.P. (C) No. 960 of 2021 Page 75 of 99
couple can be suitable adoptive parents. Such an
irrebuttable presumption defies everyday experience.
The Crown suggested that, as they could easily marry
if they chose, the very fact that they declined to do so
showed that they could not be suitable adoptive
parents. I would agree that the fact that a couple do not
wish to undertake the obligations of marriage is a
factor to be considered by the court in assessing the
likely stability of their relationship and its impact upon
the long term welfare of the child. Once again, however,
I do not see how this can be rationally elevated to an
.”
irrebuttable presumption of unsuitability
Lord Mance
“ 134. The present case concerns the strengthening and
deepening of private and family relationships that can
arise on all sides from adoption. Adoption cements a
family unit. It gives the child maintenance rights
against the adoptor(s). It makes the child a member of
the adoptor(s)’ wider family, and confers inheritance
rights in that connection. It is a process in relation to
which the child’s well-being ought to be paramount.
The fact that proposed adoptors are a married couple
is on any view a material factor. Society is entitled to
place weight on the existence of such a bond. But that
does not mean that every married couple are suitable
or every unmarried couple unsuitable as adoptors. A
close scrutiny of all the circumstances is required in the
particular child’s interests before any adoption can be
sanctioned. A couple’s decision to remain unmarried
cannot determine what is in the child’s best interests.
In today’s world, failure to tie the knot is not to be
equated with lack of actual commitment; and one
would have thought that a joint wish to adopt was
itself, at least to some extent, a counterbalancing factor.
The threshold criterion of marriage which exists under
the Northern Irish legislation looks at the matter in
terms of the couple’s decision whether or not to marry,
rather than from the viewpoint of the child or the
potential benefits of joint adoption for the child. It
excludes all possibility of adoption by all unmarried
W.P. (C) No. 960 of 2021 Page 76 of 99
couples, however longstanding and stable their
relationship It precludes any second stage: any
scrutiny at all of the circumstances, the needs or the
interests of the particular child. The legislation
distinguishes between a married and an unmarried
couple, both equally suitable as adoptors, purely on the
basis of marital status. The line drawn does not avoid
the need for a second stage scrutiny where adoption is
possible. It simply makes adoption and the security
and benefits which it would bring for the child
impossible in the case of this child unless the couple
marry.”
(Emphasis supplied)
127. Similarly, the South African Constitutional Court in Suzanne
Du Toit and Vos v. Minister for Welfare and Population
Development , (2002) 13 BHRC 187 , dealt with the issue of
whether the applicants (same-sex unmarried couple) were
eligible to adopt children as the existing legislation restricted the
right to adopt only to married couples. The Court referred to
Section 28(2) of the Constitution, which states that a child’s best
interest is of paramount importance in every matter concerning
the child.
In such circumstances, the Court held that the exclusion of
the applicants defeats the essence and purpose of adoption
which is to provide stability, commitment, affection and support
for child’s development. The impugned provision was held to be
violative of the principle of best interest of the child as it deprived
them of a stable and loving family. The relevant observations
read thus:-
“ [19] The institutions of marriage and family are
important social pillars that provide for security,
support and companionship between members of our
society and play a pivotal role in the rearing of children.
W.P. (C) No. 960 of 2021 Page 77 of 99
However, we must approach the issues in the present
matter on the basis that family life as contemplated by
the Constitution can be provided in different ways and
that legal conceptions of the family and what
constitutes family life should change as social practices
and traditions change.16 I turn now to consider the
constitutionality of the impugned provisions.
xxx
[21] In their current form the impugned provisions
exclude from their ambit potential joint adoptive
parents who are unmarried, but who are partners in
permanent same-sex life partnerships and who would
otherwise meet the criteria set out in section 18 of the
Child Care Act.20 Their exclusion surely defeats the
very essence and social purpose of adoption which is
to provide the stability, commitment, affection and
support important to a childs development, which can
be offered by suitably qualified persons .
[22] […] The impugned provisions of the Child Care Act
thus deprive children of the possibility of a loving and
stable family life as required by section 28(1)(b) of the
Constitution. This is a matter of particular concern
given the social reality of the vast number of parentless
children in our country. The provisions of the Child Care
Act thus fail to accord paramountcy to the best interests
of the children and I conclude that, in this regard,
sections 17(a) and (c) of the Act are in conflict with
section 28(2) of the Constitution .”
(Emphasis supplied)
128. The overarching theme emerging from these judgments is that
the law across the globe recognizes that the best interest of the
child must remain the paramount consideration in all decisions
affecting a child. It needs no elaboration that children must be
raised in an atmosphere of affection, understanding, and moral
security.
W.P. (C) No. 960 of 2021 Page 78 of 99
129. In the aforesaid context, the principle of the best interests of the
child does not conclude with the completion of the formalities of
adoption or the handing over of custody of the child to the
adoptive parents. It is a continuing obligation that persists
throughout the period a child remains a child, more particularly,
in this context, during which the child integrates into the
adoptive family. The true fulfilment of the child’s welfare lies in
enabling the child to meaningfully adjust, bond, and flourish
within the family environment. The period immediately following
adoption is often the most critical phase in this process, as the
child must acclimatize to unfamiliar surroundings and develop
a sense of belonging within the new family.
130. The net effect of the aforesaid discussion is that the welfare of
the child in adoption extends far beyond the moment of
placement. It entails the child’s health, emotional security, and
other needs, all of which require constant care, and support
from the parent. When Section 60(4) of the 2020 Code imposes
an age limit of three months for the availment of maternity
benefit by an adoptive mother, it fails to adequately account for
these continuing dimensions of the child’s welfare.
D. Examining validity of the impugned provision through its
workability
131. We may look at the matter from one another angle. The learned
counsel appearing for the petitioner vehemently submitted that
Section 60(4) of the 2020 Code fails to take into consideration
the time required for completing the procedure for adoption of
W.P. (C) No. 960 of 2021 Page 79 of 99
orphaned, abandoned, or surrendered children under the JJ Act
and the CARA Regulations, respectively. She would submit that
the adoption process ordinarily takes 2 months or more to be
completed. Consequently, by the time the child is legally placed
with the adoptive mother, the statutory age limit would, in most
cases, stand exhausted, thereby, rendering the provision largely
otiose in its practical application.
132. The following table indicates the timeline of the time required for
a child to be declared legally free for adoption and referred to
prospective adoptive parents (PAPs). It reads thus:-
REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
WRIT PETITION (C) NO. 960 of 2021
HAMSAANANDINI NANDURI …PETITIONER
VERSUS
UNION OF INDIA & ORS. …RESPONDENTS
J U D G M E N T
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2026.03.17
14:07:44 IST
Reason:
J.B. PARDIWALA, J. :
For the convenience of exposition, this judgment is divided into the
following parts:-
INDEX
I. THE CONTEXT ............................................................................ 2
III. SUBMISSIONS ON BEHALF OF THE PARTIES........................... 4
i. Submissions on behalf of the Petitioner .................................. 4
ii. Submissions on behalf of the Respondents ............................. 6
IV. ISSUES FOR CONSIDERATION ................................................. 7
V. ANALYSIS .................................................................................. 8
A. Maternity protection as a basic human right .......................... 8
i. Recognition of maternity protection in the International Law
framework ........................................................................................................... 10
ii. Statutory recognition of maternity benefit in India .................................. 12
iii.Relevant precedents encapsulating judicial interpretation of maternity
benefit .................................................................................................................. 15
B. The constitutional guarantee of equality under Article 14 of
the Constitution ....................................................................... 29
a. Purpose of social security benefits ............................................................... 29
i. Examining validity of the impugned provision through the test of
permissible classification ............................................................................... 31
C. The right to a dignified life for adoptive parents and adopted
child under Article 21 of the Constitution ................................ 61
i. Adoption as an expression of reproductive autonomy .............................. 61
... 67
ii. Scope and application of the principle of “ best interest of the child ”
D. Examining validity of the impugned provision through its
workability ................................................................................ 79
E. Institutional invisibility of household and care work ........... 88
F. Highlighting the importance and need for paternity leave ... 91
V. CONCLUSION ........................................................................... 97
W.P. (C) No. 960 of 2021 Page 1 of 99
“ Not flesh of my flesh, nor bone of my bone,
But still miraculously my own.
Never forget for a single minute,
You didn’t grow under my heart, but in it. ”
1. We are tempted to preface our judgment with the words of poet
Fleur Conkling Heyliger. The stanza captioned above resonates
with an undiminishing force in the present petition as well. It
communicates that transition into motherhood does not occur
in the brief moment when legal formalities are completed, rather
it is a gradual process that takes shape in the heart of the
mother. It is within these unspoken moments of reassurance
and bonding that the relationship between a mother and child
is gradually formed and strengthened.
2. Before we address ourselves on the issues raised in the writ
petition, we find it apposite to note that the petitioner filed the
I.A. No. 33856/2026 to amend the writ petition to bring on
record the amendment and consolidation of the impugned
provision by way of the Code on Social Security, 2020. We allow
the I.A. for the amendment of the writ petition. The amended
writ petition is considered for the purposes of the following
exposition.
I. THE CONTEXT
3. The petitioner, who is an adoptive mother of two children, has
filed the present petition under Article 32 of the Constitution in
public interest, seeking a declaration to the effect that Section
5(4) of the Maternity Benefit Act, 1961 (for short, “ MB Act ”) as
amended by the Maternity Benefit (Amendment) Act, 2017 (for
W.P. (C) No. 960 of 2021 Page 2 of 99
short, “ Amendment Act, 2017 ”) is unconstitutional, being
violative of Articles 14, 19(1)(g) and 21 of the Constitution,
respectively. The prayer in the petition reads thus:-
“ a) Issue a Writ, Order or direction, more particularly
one in the nature of Writ of Mandamus or any other writ
or direction in the nature of the writ and declare Section
5(4) of the Maternity Benefit (Amendment) Act 2017) as
ultra vires Articles 14, 19 and 21 of the Constitution of
India, and declare the Section 5(4) of the Maternity
Benefit (Amendment) Act 2017) as unconstitutional and
invalid;
b) Pass any other or further order(s) as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of this case, in the interest of justice and
equity. ”
4. At the outset, we must mention that on 21.11.2025, the Code
on Social Security, 2020, came into effect (for short, “ the 2020
Code ”), by which all laws relating to social security, including
that of the MB Act were amended and consolidated. Insofar as
Section 5(4) of the MB Act is concerned, Section 60(4) of the
2020 Code is the existing pari materia provision and holds the
field on the issue at hand.
5. By order dated 12.12.2025, the Court granted the petitioner
permission to take suitable steps to challenge the newly enacted
provision, i.e., Section 60(4) of the 2020 Code. Pursuant to
which, the petitioner filed I.A. No. 33856/2026 seeking
amendment of the petition to challenge Section 60(4) of the 2020
Code on the same grounds which were applicable to Section 5(4)
of the MB Act.
W.P. (C) No. 960 of 2021 Page 3 of 99
6. The impugned provision entitles only those mothers who legally
adopt a child below the age of three months or a commissioning
mother to seek maternity benefit for a period of twelve weeks
from the date on which the child is handed over to the adoptive
mother. However, the challenge before us is limited to the extent
that it governs adoptive mothers.
III. SUBMISSIONS ON BEHALF OF THE PARTIES
i. Submissions on behalf of the Petitioner
7. Ms. Bani Dikshit, the learned counsel appearing for the
petitioner would argue that Section 60(4) of the 2020 Code
creates an unreasonable classification among adoptive mothers.
She submitted that the distinction created by the legislature
between a woman who adopts a child aged less than three
months and a woman adopting a child aged three months or
above is artificial and violative of Article 14. She fortified her
submission by illustrating that if a woman adopts a child aged
four months, she would not be entitled to maternity benefit as
provided under the 2020 Code.
8. She added that such an exclusion bears no rational nexus with
the object of the 2020 Code and unjustly deprives a mother
adopting a child aged three months or above. She further
submitted that the age limit of three months could not be said
to fulfill the bright-line test, as there is no reasonable distinction
between adoptive mothers falling on either side of three-month
limit.
W.P. (C) No. 960 of 2021 Page 4 of 99
9. Ms. Dikshit further submitted that by prescribing the maximum
age of the adopted child at three months, Section 60(4) deprives
all children above the age of three months from receiving
maternal care they need for their development and integration
in their adoptive families. In other words, the provision overlooks
the physical and emotional well-being of the adoptive child aged
three months or above as well as the adoptive parent. Thus, the
provision is arbitrary, unreasonable and discriminatory not only
towards the mother but also towards the child.
10. In the same breath, she submitted that the provision disregards
the long-drawn procedure for the adoption of orphaned,
abandoned, or surrendered children under the Juvenile Justice
(Care and Protection of Children) Act, 2015 (for short, “ the JJ
Act ”) and the Adoption Regulations, 2022 (for short, “ the CARA
Regulations ”). She underscored that the process for an
orphaned, abandoned, or surrendered child to be “legally free for
adoption” would take, at the very least, two months.
Furthermore, for the fulfillment of the residuary the statutory
procedure under the CARA Regulations would require another
month. Thus, in view of such prescribed timeline, the provision
would be rendered completely otiose, as in no case can the legal
process of adoption be completed before the child.
11. She further highlighted that Section 60(4) restricts a woman’s
right to carry on her trade, occupation, and business guaranteed
under Article 19(1)(g) of the Constitution based on the child’s
age. She added that such a restriction dissuades women who
W.P. (C) No. 960 of 2021 Page 5 of 99
are working professionals from adopting. Thus, the provision
fails to ensure that more children are adopted and also
discourages women working in the organized or unorganized
sector from considering adoption.
12. She further submitted that the provision also violates the
adoptive mothers’ and adoptive children’s right to life and
dignity under Article 21 by denying the mother the right to a
wholesome and holistic motherhood and the adoptive children
the right to receive sufficient care to be rehabilitated and
integrated into the new family.
13. In such circumstances referred to above, the learned counsel
appearing for the petitioner would submit that Section 60(4) of
the 2020 Code be declared unconstitutional, to the extent that
it limits the benefits to women adopting children up to three
months old, being violative of Articles 14, 19, and 21 of the
Constitution, respectively.
ii. Submissions on behalf of the Respondents
14. Mr. K.M. Nataraj, the learned Additional Solicitor General
appearing for the respondents submitted that Section 60(4) of
the 2020 Code should to be read and interpreted along with the
entire scheme of the maternity benefit.
15. The learned ASG submitted that the submission canvassed on
behalf of the petitioner that the procedure of the adoption is time
consuming is devoid of any merit. He submitted that with a view
W.P. (C) No. 960 of 2021 Page 6 of 99
to expedite the adoption process, district magistrates and
additional district magistrates have been conferred with the
power to issue adoption orders.
16. In the aforesaid context, he submitted that in case an adoptive
mother adopts a child aged more than three months, she can
avail the creche facilities available at her establishment as per
Section 67 of the 2020 Code.
17. It was further submitted that the prescription of “ a child below
the age of three months ” is reasonable as a child older than three
months does not have the same intensive dependency on the
caregiver in terms of continuous feedings, sleeping regulation
assistance, and immediate parental imprinting to the same
degree.
18. In the last, the learned ASG submitted that Section 60(4) of the
2020 Code strikes a balance between the rights of adoptive
mothers and the concerns of employers. He added that the
provision satisfies the proportionality principle, ensures
harmonious construction with other laws, and is consistent with
international standards.
IV. ISSUES FOR CONSIDERATION
19. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the following
questions fall for our consideration:-
W.P. (C) No. 960 of 2021 Page 7 of 99
a. Whether the age limit of three months stipulated under sub-
section (4) of Section 60 of the Social Security Code, 2020,
could be said to be in violation of the Article 14 of the
Constitution being discriminatory towards women who adopt
a child aged three months or above?
b. Whether the age limit of three months stipulated under sub-
section (4) of Section 60 of the Social Security Code, 2020,
could be said to be in violation of the right to reproductive
autonomy of an adoptive mother and the right of the adopted
child to holistic care and development under Article 21 of the
Constitution?
V. ANALYSIS
A. Maternity protection as a basic human right
20. Women, as primary caregivers of children, play a crucial role in
the early development of children, more particularly, in the
formative years of the child when a mother provides stability,
care, and consistent nurturing. During this period, mothers
undertake extensive physical, emotional, and psychological
responsibilities. It often requires them to prioritize childcare over
professional commitments. In such circumstances, institutional
support becomes necessary to enable them to discharge
responsibilities effectively without fear of financial insecurity,
professional disadvantage, or the loss of livelihood.
21. The protection of maternity leave is a basic human right, as it
recognizes conditions that are necessary for the full development
W.P. (C) No. 960 of 2021 Page 8 of 99
of human personality and realization of equality. It embodies an
essential component required to promote equality at workplace
and safeguards maternal and child health. In other words, it
dignifies motherhood.
22. Maternity benefit or the payment in lieu of such leave is intended
to support women during the phase of early motherhood by
providing economic security when they are most engaged in the
care and nurture of a young child. This act of support recognizes
that motherhood entails sustained physical, emotional, and
social exertion which demands time, financial stability and
resources.
23. The concept of maternity benefit acknowledges the ability of a
woman to exercise her reproductive choices without fear of
losing her employment, more particularly, the economic
security. Thus, it ensures that motherhood does not become a
factor for exclusion at workplace.
24. In the aforesaid context, the right of maternity protection
recognizes the biological as well as caregiving realities
associated with motherhood, and seeks to correct structural
inequalities that women face in employment. It represents the
State’s commitment to uphold human dignity, equal treatment
at work, and broader ideals of social justice.
25. Thus, legislating for maternity benefit and childcare, in the form
of payment during periods of recovery and care, crèche facilities
W.P. (C) No. 960 of 2021 Page 9 of 99
at the workplace, and parental leave for tending to young
children, constitutes institutional support aimed at enabling
women to seek and retain employment, participate meaningfully
in public life, and progressively attain substantive equality.
26. It is important to highlight that motherhood is not merely a
biological function but a deeply personal and emotional
experience. It is a right rooted in the freedom to love, nurture,
and raise a child with dignity and devotion. Parenthood is
defined by care and responsibility rather than by physical act of
giving birth alone, even more so for women who choose to
embrace motherhood by adopting a child overcoming social,
emotional, and institutional barriers to provide a child with
security.
i. Recognition of maternity protection in the International
Law framework
27. Article 25(2) of the United Declaration of Human Rights (UDHR)
recognizes that motherhood and childhood are entitled to special
care and assistance. It stipulates that all children enjoy the
same social protection. Further, Article 10(2) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR)
states that mothers are entitled to special protection for a
reasonable period before and after childbirth, including paid
leave or leave supported by adequate social security benefits. In
addition to this, Article 12 obligates the State Parties to take
necessary steps for the healthy development of children.
W.P. (C) No. 960 of 2021 Page 10 of 99
28. The International Labour Organization (ILO) through Maternity
Protection Conventions (Convention No. 3, Convention No. 103,
and Convention No. 183) recommended for entitlements related
to maternity protection at work having regard to the evolving
status and recognition of women’s right at workplace. Initially,
Convention No. 3 provided 12 weeks maternity leave with cash
benefits to ensure continuity of income, daily breaks for nursing,
and protection against dismissal during leave. However, this was
limited to women working in public or private industrial or
commercial undertakings. Later, Convention No. 183 extended
the period of leave to 14 weeks and the scope of protection to
women employed in industrial undertakings and in non-
industrial and agricultural work.
29. Further, Article 11(1) of the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) mandates the
State Parties to take appropriate steps to prevent discrimination
against women on the grounds of maternity and ensure their
right to work. It puts an obligation on the State Parties to
prohibit dismissal on the grounds of maternity leave and
introduce maternity leave with comparable social benefits
without loss of former employment.
30. Simultaneously, Article 3 of the Convention on the Rights of the
Child (CRC) mandates that all actions concerning children must
be taken having regard to the best interests of the child. It urges
the State Parties to ensure that all institutional facilities
W.P. (C) No. 960 of 2021 Page 11 of 99
responsible for the care of children shall conform with the
established standards.
31. What is discernable from the aforesaid discussion is that various
international conventions recognize maternity leave as an
essential human right. The objective of all the aforesaid guiding
principles is to preserve the health of the mother and the child,
to prevent unequal treatment at workplace due to their
reproductive choices, and to promote equality of opportunity
and equitable treatment between genders.
ii. Statutory recognition of maternity benefit in India
32. The earliest statutory recognition of maternity benefit for
working women in India came through the Bombay Maternity
Benefit Act, 1929, which regulated the employment of women in
factories before and after childbirth and provided for the
payment of maternity benefit. In 1931, the Royal Commission
on Labour in India recommended that similar protective
measures be taken across the country. Thus, such protection
was being provided under various State and Central
1
legislations.
33. With a view to bring uniformity in, inter alia , the qualifying
conditions for maternity benefit, period of maternity leave,
payment in lieu of maternity leave, and to reduce disparity and
1
Madras Maternity Benefit Act, 1934 (Act 6 of 1934), Bengal Maternity Benefit
Act, 1939 (Act 4 of 1939), Punjab Maternity Benefit Act, 1943 (Act 6 of 1943),
The Assam Maternity Benefit Act, 1944 (Act 1 of 1944), Bihar Maternity
Benefit Act, 1945 (Act 24 of 1947).
W.P. (C) No. 960 of 2021 Page 12 of 99
extend maternity benefit to all women employed in
establishment, the MB Act was enacted. The Introduction and
the Statement of Objects and Reasons of the Act respectively
read thus:-
“ Maternity protection was being provided under the
different State Acts and the three Central Acts. There
was considerable diversity in their provisions relating
to qualifying conditions, period and rate of benefit, etc.
To reduce the disparities and to provide the maternity
protection to the women employed in all
establishments, including mines, factories and
plantations, except those to which the Employees' State
Insurance Act, 1948 applied, it was proposed to enact
a separate law. Accordingly the Maternity Benefit Bill
was introduced in the Parliament.
STATEMENT OF OBJECTS AND REASONS
Maternity protection is at present provided under
the different State Acts on the subject and three Central
Acts, viz., the Mines Maternity Benefit Act, 1941, the
Employees' State Insurance Act, 1948 and the
Plantations Labour Act, 1951. There is considerable
diversity in their provisions relating to qualifying
conditions, period and rate of benefit, etc. The proposed
legislation seeks to reduce as far as possible the
existing disparities in this respect. It will apply to all
establishments, including mines, factories and
plantations, except those to which the Employees' State
Insurance Act, 1948 applies and its provisions
approximate as nearly as possible to those of that Act. ”
(Emphasis is ours)
34. The MB Act was enacted with the object of regulating the
employment of women in establishments for periods before and
after child birth and providing for the payment of
in lieu
maternity leave. It aimed to ensure that a working woman does
not have to compromise on her role as a caregiver to her child.
W.P. (C) No. 960 of 2021 Page 13 of 99
35. The concept of maternity benefit also operates as an instrument
of “defamilisation”, whereby it reduces the woman’s reliance on
family for care and protects economic independence. It
represents a legislative commitment towards the promotion of
gender equality by creating an enabling environment that
recognizes and accommodates balancing familial
responsibilities with professional engagement. In doing so, the
statute affirms dignity, equality, and social justice for working
women.
th th th
36. Sometime between 2012 and 2015, the 44 , 45 , and 46
Indian Labour Conferences, respectively, recommended for
enhancement of the period of maternity leave, the introduction
of maternity benefit for adopting and commissioning mothers,
facility of work from home, and provision of creche facility in
establishments. Thus, with the aforesaid amendments were
introduced to enhance participation of women in labour force
and improve work-family balance.
37. The Amendment Act, 2017, inserted sub-section (4) of Section 5
of the MB Act which is in pari materia with Section 60(4) of the
2020 Code. The provision reads thus:-
“ 60. Right to payment of maternity benefit.—( 1)
Subject to the other provisions of this Code, every
woman shall be entitled to, and her employer shall be
liable for, the payment of maternity benefit at the rate
of the average daily wage for the period of her actual
absence, that is to say, the period immediately
W.P. (C) No. 960 of 2021 Page 14 of 99
preceding the day of her delivery, and any period
immediately following that day.
Explanation.—For the purposes of this sub-section,
“the average daily wage” means the average of the
woman's wages payable to her for the days on which
she has worked during the period of three calendar
months immediately preceding the date from which she
absents herself on account of maternity, subject to the
minimum rate of wage fixed or revised under the Code
on Wages, 2019 (29 of 2019).
xxx
(4) A woman who legally adopts a child below the age
of three months or a commissioning mother shall be
entitled to maternity benefit for a period of twelve
weeks from the date the child is handed over to the
adopting mother or the commissioning mother, as the
case may be .”
(Emphasis is ours)
38. Section 60(4) of the 2020 Code provides that a woman who
legally adopts a child below the age of three months is entitled
to maternity benefit for a period of 12 weeks from the date the
child is handed over to the adopting mother.
iii.Relevant precedents encapsulating judicial
interpretation of maternity benefit
39. Before we delve into the discussion of judicial interpretation of
scope, ambit, application of maternity benefit in varying
circumstances that have come before courts, we may look at the
definition of “maternity” in dictionary.
40. The Oxford English Dictionary, defines the word “maternity” as:-
“ The state, condition, or fact of being a mother.”
W.P. (C) No. 960 of 2021 Page 15 of 99
th
Further, the Black's Law Dictionary (8 Ed) defines “maternity”
as:-
“The character, relation, state, or condition of a
mother.”
41. The aforesaid definition reflects a broader understanding of
maternity in relation to motherhood and does not restrict it to
the period before and after childbirth or to the age of the child.
42. We may look into the decision of B. Shah v . Presiding Officer,
Labour Court , reported in (1977) 4 SCC 384 , wherein this
Court held that the interpretation of beneficial legislation must
be guided by its underlying objective of advancing social justice.
The Court emphasized that the period of maternity leave serves
multiple purposes, including enabling the mother’s physical
recovery, facilitating the nurturing and care of the child, and
ensuring the level of her previous efficiency and output.
43. In Municipal Corpn. of Delhi v . Female Workers (Muster
Roll) , reported in (2000) 3 SCC 224 , the claim of the female
workers engaged on muster roll for maternity benefit was
examined on the anvil of Articles 39, 42, and 43 of the
Constitution respectively. The Court, highlighting the critical
phase of motherhood, observed that the MB Act seeks to ensure
that women are treated with dignity at the workplace and
protected from apprehension of victimization on account of
forced absence during maternity. In such circumstances, the
Court underscored that employers are expected to adopt a
W.P. (C) No. 960 of 2021 Page 16 of 99
humane and empathetic approach towards women employers.
The relevant observations read thus:-
“ 13. Parliament has already made the Maternity
Benefit Act, 1961. It is not disputed that the benefits
available under this Act have been made available to a
class of employees of the petitioner Corporation. But the
benefit is not being made available to the women
employees engaged on muster roll, on the ground that
they are not regular employees of the Corporation. As
we shall presently see, there is no justification for
denying the benefit of this Act to casual workers or
workers employed on daily-wage basis.
xxx
33. A just social order can be achieved only when
inequalities are obliterated and everyone is provided
what is legally due. Women who constitute almost half
of the segment of our society have to be honoured and
treated with dignity at places where they work to earn
their livelihood. Whatever be the nature of their duties,
their avocation and the place where they work, they
must be provided all the facilities to which they are
entitled. 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 carrying
a baby in the womb or while rearing up the child after
birth. The Maternity Benefit Act, 1961 aims to provide
all these facilities to a working woman in a dignified
manner so that she may overcome the state of
motherhood honourably, peaceably, undeterred by the
fear of being victimised for forced absence during the
pre-or post-natal period .”
(Emphasis supplied)
44. This Court had the occasion to consider the interpretation of
Rule 43 of the Central Civil Services (Leave) Rules, 1972 (for
W.P. (C) No. 960 of 2021 Page 17 of 99
short, “ CCS (Leave) Rules ”), in Deepika Singh v . Pgimer,
Chandigarh , reported in (2023) 13 SCC 681 . The maternity
leave sought by the appellant upon the birth of her first
biological child was rejected on the ground that her spouse had
two children from his previous marriage.
The Court underscored that judicial interpretation must
bridge the gap between law and social realities through a
purposive approach. It noted that the MB Act was enacted to
secure a woman’s rights both as a mother and as a worker, and
the object of maternity leave is to facilitate the continued
participation of women at workplace. What has been conveyed
by this Court, in so many words, is that the birth of a child is a
natural incident of life and that the provisions of the MB Act
must be construed keeping this in mind. An atypical familial
structure must not be weighed less than traditionally
conforming families. The relevant observations read thus:-
“ 26. 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 the 1972 Rules 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 childbirth as
detracting from the purpose of employment. Childbirth
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 .
27. 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
W.P. (C) No. 960 of 2021 Page 18 of 99
(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
undoubtedly holds true for women who take on the role
of motherhood in ways that may not find a place in the
popular imagination. ”
(Emphasis supplied)
45. In yet another case, a woman’s request for maternity leave was
rejected on the grounds that there was no provision for the grant
of maternity leave in respect of a third child from her second
marriage. In K. Umadevi v . State of T.N. , reported in (2025) 8
SCC 263 , the Court interpreted the expression “two surviving
children” in the relevant rules to mean children in lawful
custody of the mother. While considering Section 5 of the MB
Act, the Court observed that the grant of maternity benefit is not
per se denied to a woman employee having more than two
children. In order to effectively achieve broader social welfare
W.P. (C) No. 960 of 2021 Page 19 of 99
goals, the Court sought to harmonize population control
measures with the objective of extending maternity benefit.
46. It would be apposite to refer to the observations of the Delhi High
Court in Rama Pandey v . Union of India , reported in 2015
SCC OnLine Del 10484 , wherein it was noted that except the
physiological changes, all other challenges faced in rearing of a
child are common for all mothers. The Court rejected the
submission made by the respondent that maternity leave is
granted only to deal with biological changes which accompany
pregnancy. It was further highlighted that the concept of
maternity leave shall rest upon motherhood and welfare of the
child. The relevant observations read thus:-
“ 17. The argument of the respondents that the
underlying rationale, for according maternity leave
(which is to secure the health and safety of pregnant
female employee), would be rendered nugatory - to my
mind, loses sight of the following:
(i) First, that entitlement to leave is an aspect different
from the right to avail leave.
(ii) Second, the argument centres, substantially,
around, the interest of the carrier, and in a sense, gives,
in relative terms, lesser weight to the best interest of
the child. ”
(Emphasis supplied)
47. In Dev Shree Bandhe v . C.G. State Power Holding Co. Ltd. ,
reported in 2017 SCC OnLine Chh 1763 , the petitioner,
employed on probation, sought maternity leave which was
declined by the respondent. The Court recognized the right to
motherhood and the right of every child to full development as
part of Article 21. Similarly, the Rajasthan High Court in
W.P. (C) No. 960 of 2021 Page 20 of 99
Chanda Keswani v . State of Rajasthan , reported in 2023
SCC OnLine Raj 3274 , held that the right to life includes the
right to motherhood and the right of every child to full
development. Thus, it was held that denial of maternity leave
cannot be on the ground that the woman seeking it has given
birth biologically, or has begotten a child through surrogacy or
adoption.
48. In Pratiba Himral v . State of H.P. , reported in 2021 SCC
OnLine HP 9295 , the petitioner had adopted a child and sought
the benefit of maternity leave as per the CCS (Leave) Rules.
While allowing the petition, the Himachal Pradesh High Court
noted that one of the purposes of the leave is bonding between
the child and parents. It was observed that an adopted child is
not different from a biological child, thus, the way the child has
come into the life of the mother is no ground to refuse maternity
benefit. The relevant observations read thus:-
“ 11. Not only are the health issues of the mother and
the child considered while providing for maternity
leave, but the leave is provided for creating a bond of
affection between the two. To distinguish between a
mother who begets a child through adoption and a
natural mother, who gives birth to a child, would result
in insulting womanhood and the intention of a woman
to bring up a child begotten through adoption.
Motherhood never ends on the birth of the child and a
commissioning mother cannot be refused paid
maternity leave. A woman cannot be discriminated, as
far as maternity benefits are concerned, only on the
ground that she has obtained the baby through
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 his mother. The tremendous amount of
W.P. (C) No. 960 of 2021 Page 21 of 99
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. ”
(Emphasis supplied)
49. Again, the Delhi High Court in State v . Ravina Yadav , reported
in 2024 SCC OnLine Del 4987 , dealt with the question of
whether maternity leave could be granted to a woman having
two surviving children. The Court adverted to the constitutional
principles flowing from Articles 39, 41, 42, and 43 of the
Constitution respectively, and observed that maternity leave
constitutes an important facet of the constitutional guarantee
available to women. It noted that the scope of maternity leave
under the CCS (Leave) Rules has gradually evolved – initially
confined to biological childbirth, and subsequently extended to
include paternity leave, adoption leave, and childcare leave.
What is noteworthy in the observations of the Court that the
concept of maternity benefit is intended to achieve social justice
for women and children, and the period of leave plays a crucial
role in fostering emotional bonding between the mother and the
child. In this context, the Court also took note of studies
indicating that stress hormone levels in children raised in
orphanages are higher than those in children brought up in a
familial environment. The relevant observations read thus:-
“ 8. The concept of maternity leave, flowing from above
quoted constitutional pronouncements is a matter of not
just fair play and social justice, but also a constitutional
guarantee to women of this country towards fulfillment
whereof, the State is duty bound to act. It is in this
direction that Parliament enacted the Maternity Benefit
Act, 1961 (hereinafter referred to as “the Act”), thereby
consolidating the maternity protection which was
W.P. (C) No. 960 of 2021 Page 22 of 99
earlier being provided under different State and Central
enactments, embodying considerable diversity relating
to the qualifying conditions, period and rate of benefits
etc., to reduce which, a separate central legislation was
required.
xxx
15.2. The early infancy environment and changes have
lasting effect on the development of brain in the child.
Researchers across the world have observed that
infants begin to bond with their mother from the
moment of birth, and this social bond continues to
provide regulatory emotional functions throughout
adulthood. It is part of well documented research that
children from deprived surroundings like orphanages
have vastly different hormone levels as compared to
their parent-raised peers. For instance, in Romania
during 1980s, in target group aged 6 to 12 years, levels
of the stress hormone Cortisol were found much higher
in children who lived in orphanages for more than eight
months as compared to those who were adopted at or
before the age of four months .
15.3. Other researches show that children who
experienced early deprivation of maternal touch had
different levels of Oxytocin and Vasopressin (hormones
that have been linked to emotion and social bonding),
despite having spent an average of three years in a
family home and this environmental change into a
home does not seem to have completely overridden the
effects of earlier neglect, according to medical
researches published in the year 2005 in the
proceedings of the National Academy of Sciences,
University of Wisconsin. The Vasopressin and Oxytocin
neuropeptide systems, which are critical in the
establishment of social bonds and regulation of
emotional behaviors are affected by early social
experience.
15.4. The results of various experiments suggest a
potential mechanism whose atypical function may
explain the pervasive social and emotional difficulties
observed in many children who have experienced
W.P. (C) No. 960 of 2021 Page 23 of 99
aberrant care giving. The social attachments formed
between human infant and her caregiver begin very
early in postnatal life and play a critical role in child's
survival and healthy adaptation. Typically, adults
provide infants with a social environment that is fairly
consistent. Caregivers learn how to recognize and
respond to the infants' needs, thereby creating
predictable contingencies in the environment; these
regularities, in turn, make the infants' environment
secure and conducive to further social learning.
Multiple perceptual, sensory, cognitive, and effective
systems must become synchronized so that a social
bond can develop between an infant and caregiver; this
bond is then reflected in the child's adaptive behavioral
responses to the environment. (Reference : Paper
published by the team of Department of Psychology,
University of Wisconsin, led by Alison B Wismer
Fries (www.pnas.org/cgi/doi/10.1073/pnas.050476
7102)).
(Emphasis supplied)
50. Motherhood does not end with the birth of a child. This was
observed, or rather emphasized by the Chhattisgarh High Court
in Lata Goyal v . Union of India , reported in 2025 SCC OnLine
Chh 5572 , wherein the petitioner, an employee of IIM, sought
directions that adoption leave and child care leave as per the
CCS (Leave) Rules be made applicable to her. The views
expressed by the Court merit commendation.
It observed that a woman’s right to practice a profession is a
constitutional entitlement flowing from Articles 14, 15, and 21
of the Constitution respectively. It emphasized that State cannot
remain oblivious to the needs and concerns of women in
workforce. The Court categorically held that discrimination on
the ground of the mode of bringing a child is impermissible, for
the object of such leave is to dignify motherhood and ensure the
W.P. (C) No. 960 of 2021 Page 24 of 99
healthy growth and development of the child. It refrained from
distinguishing between a biological, adoptive or surrogate
mother. The relevant observations read thus:-
“ 12. Adoptive mothers, like all mothers, are capable of
experiencing deep love and affection for their children,
regardless of whether they are biological or adopted.
The love and affection they offer can be just as strong
and profound as that of a birth mother. Adoptive
mothers, like birth mothers, can form strong bonds of
love and attachment with their children. These bonds
can be crucial for a child's emotional and psychological
well-being.
13. 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. This consideration applies a fortiori in the
case of a mother who has a child with special needs.
Such a case is exemplified in the case of the petitioner
herself.
xxx
15. There ought not to be any discrimination of a
woman as far as the maternity benefits are concerned
only on the ground that she has obtained the baby
through adoption. The object of the leave is to protect
the dignity of motherhood by providing for full and
healthy maintenance to the child. Child care/child
adoption leave is intended to achieve the object of
ensuring social justice to women. Childhood both
require special attention.
W.P. (C) No. 960 of 2021 Page 25 of 99
16. Not only are the health issues of the child
considered while providing leave, but the leave is
provided for creating a bond of affection between the
two. Motherhood never ends on the birth of the child
and a commissioning/adoption mother cannot be
refused paid maternity leave. 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.
17. 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. ”
(Emphasis supplied)
51. Recently, the Kerala High Court in Susan K. John v . National
Board of Examinations in Medical Sciences , reported in
2026 SCC OnLine Ker 1333 , held that maternity leave is a right
and not a leave subject to discretion of the authorities.
52. The commonly drawn distinction between a mother who begets
a child through surrogacy or adoption and a mother who
naturally gives birth to a child perceives motherhood through
the narrow lens of biology and fails to take into account the bond
W.P. (C) No. 960 of 2021 Page 26 of 99
that develops between a mother and her child outside the womb,
which is as crucial and intimate, as the bond that is formed
inside the womb. Further, the said distinction makes
motherhood contingent upon biological requirements and is a
direct affront to the desire and intention of a woman to
experience motherhood and bring up a child. We have no
hesitation in saying that an adoptive mother like the petitioner
would have the same rights and obligations towards the child as
the natural mother.
53. We do not say for a moment that biological mothers and adoptive
mothers form the same category. We acknowledge the
distinction created by the legislature. However, the
constitutional validity of the impugned provision must be tested
by examining the purpose and components of maternity leave
and the extent to which such purpose is served in each
situation.
54. The components of maternity leave broadly consist of three
elements.
i. First, the time necessary for physical recovery following the
birth of a child, which concerns both the well-being of the
mother and the child. As the immediate focus remains on
the mother that she should not be required to resume
employment until she has adequately recovered from the
physical tribulations associated with childbirth.
ii. Secondly, the time required to nurture and develop the
emotional bond between the mother and the child.
W.P. (C) No. 960 of 2021 Page 27 of 99
iii. Thirdly, the time necessary to attend to the physical and
emotional needs of the child and to facilitate the process by
which the child gradually integrates into the family, with the
mother often acting as the primary medium through which
the child is introduced to the familial environment.
55. In case of biological birth, the aforementioned three components
are largely subsumed within one another and are not clearly
distinguishable. The period of physical recovery often overlaps
with the period during which the mother and child establish
emotional attachment and the child begins to adapt to the
familial setting. Whereas, in case of adoption or surrogacy, while
the first component is absent, the second and third component
are present and significant. The legislative recognition of
maternity leave for adoptive and commissioning mothers under
sub-section (4) of Section 60 is itself an acknowledgment of the
importance of these components.
56. It is limpid that in the case of a biological mother, the aforesaid
components, more particularly, the development of the
emotional bond between the mother and the child, are often
supported by physiological mechanisms which are evolutionary
in nature. In the case of adoption, however, the same bond must
be consciously nurtured through time, presence, and sustained
caregiving.
57. It is in this context that the argument of the petitioner assumes
importance that the impugned provision by introducing an
W.P. (C) No. 960 of 2021 Page 28 of 99
arbitrary three-month time limit, deprives adoptive mothers of
children older than three months, the opportunity required for
the effective fulfilment of the above-mentioned second and the
third components, more particularly, when the need for the
same could not be said to be solely dependent on the age of the
adopted child. We shall now proceed with testing the
constitutional validity of the impugned provision on the anvil of
the right to equality.
B. The constitutional guarantee of equality under Article 14
of the Constitution
58. Before testing the constitutional validity of a provision, more
particularly, where it is alleged that it violates fundamental
rights, it is necessary to ascertain the true nature, character and
impact of the provision on the object and intention of the
legislation. Thus, the courts have to look behind the form and
appearance of the provision. In other words, the purport and
intent of the legislation has to be determined.
a. Purpose of social security benefits
59. The discussions in the foregoing paragraphs establishes that the
purport and intent of the MB Act, now forming part of the 2020
Code, is to dignify motherhood, safeguard maternal well-being,
while ensuring continued participation of women in the
workforce. The said Act is a legislative recognition of the
physical, emotional, and social dimensions of motherhood, and
accommodates the pivotal role it plays in a woman’s life. By
providing institutional support, the MB Act endeavours to
W.P. (C) No. 960 of 2021 Page 29 of 99
harmonize professional obligations with familial responsibilities
in order to promote an environment in which both the mother
and the child would thrive.
60. In 2020, the MB Act, along with other laws relating to social
security, were consolidated in order to extend social security
coverage to all persons working in both the organized and
unorganized sectors uniformly. Social security benefits
guarantee labour and economic protection against loss of work
due to illness, disability, death of family members, old age,
unemployment, and maternity.
61. In the case at hand, we are concerned with maternity benefit.
With the increasing participation of women in the workforce,
there emerged a growing recognition of economic contribution
by women, and of the substantial loss of income when their
employment was interrupted. Thus, social security is intended
to provide protection against contingencies that impair a
person’s capacity to actively participate in work.
62. In the aforesaid context, maternity is one such contingency, as
it involves temporary physical, emotional, and economic
vulnerability. In other words, maternity benefit form an integral
component of the social security framework, aimed at ensuring
economic security, safeguarding maternal health, and
promoting welfare of the child.
W.P. (C) No. 960 of 2021 Page 30 of 99
63. In this backdrop, we shall now address the first submission
canvassed on behalf of the petitioner with regard to the violation
of Article 14 of the Constitution. It was submitted that Section
60(4) of the 2020 Code creates an unreasonable classification
among adoptive mothers. In other words, the petitioner argued
that the classification between a woman adopting a child aged
less than three months and a woman adopting a child aged three
months or more is artificial and violative of Article 14.
i. Examining validity of the impugned provision through the
test of permissible classification
64. The law on classification is well settled and does not require
restatement in extenso. While Article 14 of the Constitution
permits classification, such classification must rest upon a real
and substantial distinction. In other words, the differential
treatment accorded to one group vis-à-vis another must bear a
rational relation to the object sought to be achieved by the
legislature. Any classification lacking a substantial and
intelligible basis is arbitrary and violative of the equality
guarantee under the Constitution. Thus, Article 14 mandates
that the law must operate equally on all persons under like
circumstances .
65. Although classification by its very nature is discriminatory, yet
equality, in cases involving classification, is treatment afforded
after due regard to the nature, attainment or circumstances of
the group concerned, so as to cater to its specific needs. It could
be said that classification is an expression of substantive
W.P. (C) No. 960 of 2021 Page 31 of 99
equality. We say so because individuals form a group, and a
group is classified on the basis of some qualities or
characteristics found in all persons and not in others, and such
classification must have relation to the object of the legislation.
In this context, this Court in State of W.B. v . Anwar Ali
Sarkar , reported in (1952) 1 SCC 1 , observed thus:-
“ 85. It is now well established that while Article 14 is
designed to prevent a person or class of persons from
being singled out from others similarly situated for the
purpose of being specially subjected to discriminating
and hostile legislation, it does not insist on an “abstract
symmetry” in the sense that every piece of legislation
must have universal application. All persons are not, by
nature, attainment or circumstances, equal and the
varying needs of different classes of persons often
require separate treatment and, therefore, the
protecting clause has been construed as a guarantee
against discrimination amongst equals only and not as
taking away from the State the power to classify
persons for the purpose of legislation. This
classification may be on different bases. It may be
geographical or according to objects or occupations or
the like. Mere classification, however, is not enough to
get over the inhibition of the article. The classification
must not be arbitrary but must be rational, that is to
say, it must not only be based on some qualities or
characteristics which are to be found in all the persons
grouped together and not in others who are left out but
those qualities or characteristics must have a
reasonable relation to the object of the legislation. In
order to pass the test, two conditions must be fulfilled,
namely, (1) that the classification must be founded on
an intelligible differentia which distinguishes those
that are grouped together from others, and (2) that that
differentia must have a rational relation to the object
sought to be achieved by the Act. The differentia which
is the basis of the classification and the object of the
Act are distinct things and what is necessary is that
there must be a nexus between them. In short, while
W.P. (C) No. 960 of 2021 Page 32 of 99
the article forbids class legislation in the sense of
making improper discrimination by conferring
privileges or imposing liabilities upon persons
arbitrarily selected out of a large number of other
persons similarly situated in relation to the privileges
sought to be conferred or the liability proposed to be
imposed, it does not forbid classification for the purpose
of legislation, provided such classification is not
arbitrary in the sense I have just explained. The
doctrine, as expounded by this Court in the two cases I
have mentioned, leaves a considerable latitude to the
Court in the matter of the application of Article 14 and
consequently has the merit of flexibility. ”
(Emphasis supplied)
State
66. We may refer to and rely upon the decision of this Court in
of Gujarat v . Shri Ambica Mills Ltd. , reported in (1974) 4
SCC 656 , wherein a Constitution Bench explained the
characteristics of “reasonable classification”. It stated that a
classification would be termed reasonable when it includes all
those who are similarly situated with regards to the purpose of
such classification and none who are not. In other words, a
classification must not either be under inclusive or over
inclusive. The relevant observations read thus:-
“ 53. The equal protection of the laws is a pledge of the
protection of equal laws. But laws may classify. And
the very idea of classification is that of inequality. In
tackling this paradox the Court has neither abandoned
the demand for equality nor denied the legislative right
to classify. It has taken a middle course. It has resolved
the contradictory demands of legislative specialization
and constitutional generality by a doctrine of
reasonable classification. [ See Joseph Tussman and
Jacobusten Brook The Equal Protection of the Law, 37
California Rev 341]
W.P. (C) No. 960 of 2021 Page 33 of 99
54. A reasonable classification is one which includes
all who are similarly situated and none who are not.
The question then is: what does the phrase “similarly
situated” mean? The answer to the question is that we
must look beyond the classification to the purpose of
the law. A reasonable classification is one which
includes all persons who are similarly situated with
respect to the purpose of the law. The purpose of a law
may be either the elimination of a public mischief or the
achievement of some positive public good.
55. A classification is under-inclusive when all who are
included in the class are tainted with the mischief but
there are others also tainted whom the classification
does not include. In other words, a classification is bad
as under-inclusive when a State benefits or burdens
persons in a manner that furthers a legitimate purpose
but does not confer the same benefit or place the same
burden on others who are similarly situated. A
classification is over-inclusive when it includes not only
those who are similarly situated with respect to the
purpose but others who are not so situated as well. In
other words, this type of classification imposes a
burden upon a wider range of individuals than are
included in the class of those attended with mischief at
which the law aims. Herod ordering the death of all
male children born on a particular day because one of
them would some day bring about his downfall
employed such a classification.
xxx
64. Laws regulating economic activity would be viewed
differently from laws which touch and concern freedom
of speech and religion, voting, procreation, rights with
respect to criminal procedure, etc. The prominence
given to the equal protection clause in many modern
opinions and decisions in America all show that the
Court feels less constrained to give judicial deference to
legislative judgment in the field of human and civil
rights than in that of economic regulation and that it is
making a vigorous use of the equal protection clause to
strike down legislative action in the area of
W.P. (C) No. 960 of 2021 Page 34 of 99
fundamental human rights. [ See “Developments Equal
Protection”, 32 Harv, Law Rev 1065, 1127]
Equal protection clause rests upon two largely
subjective judgments: one as to the relative
invidiousness of particular differentiation and the
other as to the relative importance of the subject
with respect to which equality is sought. [ See Cox,
“The Supreme Court Foreword”, 1965 Term, 80
Harv. Daw Rev. 91-95]
65. The question whether, under Article 14, a
classification is reasonable or unreasonable must, in
the ultimate analysis depend upon the judicial
approach to the problem. The great divide in this area
lies in the difference between emphasising the
actualities or the abstractions of legislation. The more
complicated society becomes, the greater the diversity
of its problems and the more does legislation direct
itself to the diversities.
Statutes are directed to less than universal
situations. Law reflects distinctions that exist in fact
or at least appear to exist in the judgment of
legislators — those whose have the responsibility
for making law fit fact. Legislation is essentially
empiric. It addresses itself to the more or less crude
outside world and not to the neat, logical models of
the mind. Classification is inherent in legislation. To
recognise marked differences that exist in fact is
living law; to disregard practical differences and
concentrate on some abstract identities is lifeless
logic. [ See the observations of Justice Frankfurter
in Morey v. Doud, 354 US 457, 472 (1957)] ”
(Emphasis supplied)
67. What flows from the aforesaid decision is that under-
inclusiveness in classification refers to a situation when
classification confers benefits on certain persons in furtherance
of a legitimate purpose but fails to extend the same benefits to
W.P. (C) No. 960 of 2021 Page 35 of 99
others who are similarly situated, without a justification. Such
a manner of classification renders it unreasonable and volatile
when examined through the test of permissible classification
under Article 14.
68. In this regard, it would be apposite to refer to the decision in
Pravinsinh Indrasinh Mahida v . State of Gujarat , reported
in 2021 SCC OnLine Guj 1293 , wherein the Gujarat High Court
while dealing with the challenge to the legality and
constitutional validity of the Gujarat Cooperative Societies
(Amendment) Act, 2019, emphasized on the principle of
Shri Ambica
“similarly situated” expounded by this Court in
Mills Ltd. ( supra ). The State attempted to exclude sugar
factories from the purview of Section 74C of the said Act. The
Court found the classification of sugar factories arbitrary,
looking at the intention of the Section 74C and the object sought
to be achieved through the classification, i.e., administrative
exigency or saving money.
In this context, the Court noted that a reasonable
classification is one which includes all individuals who are
similarly situated with regards to the purpose of the law. It was
observed that the government cannot create a classification by
excluding one category when both categories belong to the same
genus. The relevant observations read thus:-
“ 75. Thus, the ratio discernible from the above referred
judgment of the Supreme Court and the same can be
made applicable to the case on hand is that the
Government cannot create sub-classification thereby
excluding one sub-category, even when both the sub-
categories are of the same genus. If that is done, it
W.P. (C) No. 960 of 2021 Page 36 of 99
would be considered as violating the equality clause
enshrined in Article 14 of the Constitution. The
Supreme Court proceeded to observe that the judicial
review of such notifications is permissible in order to
undertake the scrutiny as to whether the notification
results in invidious discrimination between two
persons though they belong to the same class. of
course, in the case on hand, the State has tried very
hard to persuade this Court to take the view that the
Sugar societies are not of the same genus and have
tried to distinguish between the federal and primary
societies. This issue we shall deal with a little later. The
Supreme Court, ultimately, held that the notification
should be applied to the entire class. If the Government
fails to support its action of classification on the
touchstone of the principle whether the classification is
reasonable having an intelligible differentia and a
rational basis germane to the purpose, the
classification has to be held as arbitrary and
discriminatory.
xxx
80. Article 14 has two clear facets which are invalid.
One is over classification and the other is under
classification, which is otherwise, over inclusiveness or
under inclusiveness. The judicial review of over
classification should be done very strictly. In the cases
of under classification when the complaint is either by
those who are left out or those who are in i.e. that the
statute has roped him in, but a similarly situated
person has been left out, it would be under inclusion. It
is to say that you ought to have brought him in to make
the classification reasonable. It is in such cases that the
Courts have said that who should be brought in, should
be left to the wisdom of the legislature because it is
essentially a stage where there should be an element
of practicality. Therefore, the cases of under inclusion
can be reviewed in a little liberal manner. The under
inclusion argument should not very readily be accepted
by the Court because the stage could be experimental.
For instance, if the argument is in context with Section
74C that some other category of society has been left
out, the Court would say that it is under inclusion. The
W.P. (C) No. 960 of 2021 Page 37 of 99
legislature does not have to bring in everybody to make
it reasonable. The case on hand is one of active
exclusion. Had the Sugar societies been left out or the
voters been excluded in Section 74C at the first
instance and they came in to say that the State ought
to have included us, the test would have been very
strict, not that it would be impervious to review. The
Court would be justified in not entertaining such
complaint saying that the State should be given some
freedom whom to include or whom not to include. The
Sugar societies have come at the stage where they are
excluded. They are saying that having treated us as
one, you cannot exclude us now in an arbitrary
manner. This is not exclusion or inclusion at the
threshold or the first stage. This is active positive
leaving out - single legislation - single category
legislation - constantly eliminating where the principles
do not apply of that of under inclusion. ”
(Emphasis supplied)
69. At this stage, it would be apposite to state that, in order to pass
the test of permissible classification, the distinction drawn by
the impugned provision or legislation must not only bear a
rational nexus with the object sought to be achieved by the Act,
but the classification must also be inclusive of all similarly
situated individuals.
70. We may look at the decision in Citizenship Act, 1955, Section
6-A, In re , reported in (2024) 16 SCC 105 , wherein this Court
held that the factors for determining a class are decisive in
assessing whether a provision is under-inclusive or over-
inclusive. Such factors must bear a rational nexus with the
object and intent of the statute and must be in consonance with
constitutional principles.
W.P. (C) No. 960 of 2021 Page 38 of 99
It was further held that it is incumbent on the State to
include all persons within the classification who satisfy the
prescribed criteria for classification. Any exclusion of similarly
situated individual must be justified, and the degree of
justification required to be discharged by the State is
substantially higher in a matter affecting individual rights than
that applicable in matters of economic policy. The relevant
observations read thus:-
“ 472.3. The determination of the yardstick for
classification will help in the assessment of whether a
provision is underinclusive or overinclusive. The
yardstick must have a nexus with the object and must
be in consonance with constitutional principles. If the
yardstick satisfies the test, then the State must
determine if all persons/situations similarly situated
based on the yardstick have been included. The State
must on the submission of cogent reason justify if those
who are similarly situated have not been included
(underinclusiveness) or those who are not similarly
situated have been included (overinclusiveness). The
degree of justification that the State is required to
discharge depends on the subject-matter of the law,
that is whether the matter deals with economic policy
or fiscal matters, whether it is a beneficial provision
such as a labour provision or whether it deals with the
core or innate traits of individuals. The degree of
justification is the least for economic policy, higher for
a beneficial provision and the highest if it infringes
upon the core or innate trait of individuals .”
(Emphasis supplied)
71. In the aforesaid context, the observations in Pravinsinh
Indrasinh Mahida ( ), succinctly explain the distinction
supra
between the intent of the legislation and legislative intention. It
underscored that while the legislation intends to remedy a
W.P. (C) No. 960 of 2021 Page 39 of 99
malady, the legislative intention related to the meaning or
exposition of the remedy. Insofar as the test for permissible
classification is concerned, the rational nexus of the
classification is juxtaposed against the intention of the
legislation. The relevant observations read thus:-
“ 84. In the aforesaid context, we may refer to and rely
upon a decision of the Supreme Court in the case
of Hiral P. Harsora v. Kusum Narottamdas
Harsora reported in (2016) 10 SCC 165. Hiral Harsora
was a case which decided an important question as to
the constitutional validity of Section 2(q) of the
Protection of Women from Domestic Violence Act, 2005.
The appeal before the Supreme Court raised an
important question concerning the area of protection of
the female sex generally. The Supreme Court first tried
to ascertain the object which was sought to be achieved
by the 2005 Act. In doing so, the Court looked into the
Statement of objects and reasons, the preamble and
the provisions of the 2005 Act as a whole. In doing so,
the Supreme Court followed the law as discussed in
paras 13 and 14. It reads thus:
“ 13. In Shashikant Laxman Kale v. Union of
India, (1990) 2 SCR 441, this Court was faced with
the constitutional validity of an exemption section
contained in the Indian Income Tax Act, 1961. After
referring in detail to Re : Special Courts Bill, (1979)
1 SCC 380 : (1979) 2 SCR 476 and the propositions
laid down therein on Article 14 generally and a few
other judgments, this Court held:—
“15. It is first necessary to discern the true purpose
or object of the impugned enactment because it is
only with reference to the true object of the
enactment that the existence of a rational nexus of
the differentia on which the classification is based,
with the object sought to be achieved by the
enactment, can be examined to test the validity of
the classification. In Francis Bennion's Statutory
Interpretation, (1984 edn.), the distinction between
the legislative intention and the purpose or object of
W.P. (C) No. 960 of 2021 Page 40 of 99
the legislation has been succinctly summarised at
p. 237 as under:
“The distinction between the purpose or object
of an enactment and the legislative intention
governing it is that the former relates to the
mischief to which the enactment is directed
and its remedy, while the latter relates to the
legal meaning of the enactment.”
16. There is thus a clear distinction between the
two. While the purpose or object of the legislation is
to provide a remedy for the malady, the legislative
intention relates to the meaning or exposition of the
remedy as enacted. While dealing with the validity
of a classification, the rational nexus of the
differentia on which the classification is based has
to exist with the purpose or object of the legislation,
so determined. The question next is of the manner in
which the purpose or object of the enactment has to
be determined and the material which can be used
for this exercise.[…]
xxx
86. The constitutional principle of equality is inherent
in the rule of law. The rule of law is satisfied when laws
are applied or enforced equally, that is, even handedly,
free of bias and without irrational distinction. The
concept of equality allows differential treatment but it
prevents distinctions that are not properly justified.
Justification requires each case to be decided on a
case-to case basis. In Subramanian Swamy's
case (supra), one set of bureaucrats of the level of Joint
Secretary and above working with the Central
Government were offered the protection under Section
6-A while the same level of officers who were working
in the States were not afforded with the same
protection though both the classes of those officers
were accused of an offence under the Act, 1988 and
inquiry/investigation into such allegations were to be
carried out. The issue before the Supreme Court was
whether the classification was based on intelligible
differentia. The Supreme Court took the view that the
classification could not be said to be based on
intelligible differentia because the provisions in Section
W.P. (C) No. 960 of 2021 Page 41 of 99
6-A of the Act, 1988 impeded tracking down the corrupt
senior bureaucrats as without previous approval of the
Central Government, the CBI could not have even
conducted a preliminary inquiry much less an
investigation into the allegations. The Supreme Court
took notice of the fact that the protection in Section 6-A
had the propensity of shielding the corrupt. The
Supreme Court held that the object of Section 6-A itself
was discriminatory and such discrimination could not
have been justified on the ground that there was a
reasonable classification because it had rational
relation to the object sought to be achieved. Ultimately,
the Supreme Court held that although every
differentiation may not be a discrimination, yet the
differentiation must be founded on pertinent and real
differences as distinguished from irrelevant and
artificial ones. In the case on hand, we have explained
how the differentiation amounts to discrimination and
why the differentiation could be said to be irrelevant
and artificial. ”
(Emphasis supplied)
72. With a view to dispel any doubt and lend clarity, we deem it
appropriate to observe that the legislature is within its right to
create a classification and decide the basis thereof. However, the
scope and limits of judicial scrutiny in examining such
classification must be borne in mind. The degree of deference,
or rather restraint exercised by courts in case of classification
by the State is elucidated by this Court in State of T.N. v .
National South Indian River Interlinking Agriculturist
Assn. , reported in (2021) 15 SCC 534 . There is no doubt that
courts ordinarily accord a high degree of deference to legislative
decisions with regards to economic matters. However, when
classification affects substantive rights and operates in an
under-inclusive manner, judicial deference stands
W.P. (C) No. 960 of 2021 Page 42 of 99
correspondingly diminished. The relevant observations read
thus:-
“ 11. However, it is settled law that the Court cannot
interfere with the soundness and wisdom of a policy. A
policy is subject to judicial review on the limited
grounds of compliance with the fundamental rights and
other provisions of the Constitution. [Asif
Hameed v. State of J&K, 1989 Supp (2) SCC 364 : 1
SCEC 358; Shri Sitaram Sugar Co. Ltd. v. Union of
India, (1990) 3 SCC 223; Khoday Distilleries
Ltd. v. State of Karnataka, (1996) 10 SCC
304; Balco Employees' Union v. Union of India, (2002)
2 SCC 333; State of Orissa v. Gopinath Dash, (2005) 13
SCC 495 : 2006 SCC (L&S) 1225] It is also settled that
the Courts would show a higher degree of deference to
matters concerning economic policy, compared to other
matters of civil and political rights. In R.K.
Garg v. Union of India [R.K. Garg v. Union of India,
(1981) 4 SCC 675 : 1982 SCC (Tax) 30] , this Court
decided on the constitutional validity of the Special
Bearer Bonds (Immunities and Exemptions) Act, 1981.
The challenge to the statute was on the principal
ground that it was violative of Article 14 of the
Constitution. Rejecting the challenge, the Constitution
Bench observed that laws relating to economic
activities must be viewed with greater latitude and
deference when compared to laws relating to civil rights
such as freedom of speech : (SCC pp. 690-91, para 8)
“8. Another rule of equal importance is that laws
relating to economic activities should be viewed with
greater latitude than laws touching civil rights such
as freedom of speech, religion, etc. It has been said
by no less a person than Holmes, J. [Ed. : The
reference appears to be to Bain Peanut Co. of
Texas v. Pinson, 1931 SCC OnLine US SC 34 : 7 L
Ed 482 : 282 US 499 (1931). See also Missouri,
Kansas & Texas Railway Co. of Texas v. Clay May,
1904 SCC OnLine US SC 118 : 48 L Ed 971 : 194 US
267, 269 (1904).] , that the legislature should be
allowed some play in the joints, because it has to
deal with complex problems which do not admit of
W.P. (C) No. 960 of 2021 Page 43 of 99
solution through any doctrinaire or straitjacket
formula and this is particularly true in case of
legislation dealing with economic matters, where,
having regard to the nature of the problems required
to be dealt with, greater play in the joints has to be
allowed to the legislature. The court should feel
more inclined to give judicial deference to legislative
judgment in the field of economic regulation than in
other areas where fundamental human rights are
involved. Nowhere has this admonition been more
felicitously expressed than
in Morey v. Doud [Morey v. Doud, 1957 SCC OnLine
US SC 105 : 1 L Ed 2d 1485 : 354 US 457 (1957)]
where Frankfurter, J., said in his inimitable style:
‘In the utilities, tax and economic regulation cases,
there are good reasons for judicial self-restraint if
not judicial deference to legislative judgment. The
legislature after all has the affirmative
responsibility. The courts have only the power to
destroy, not to reconstruct. When these are added
to the complexity of economic regulation, the
uncertainty, the liability to error, the bewildering
conflict of the experts, and the number of times the
Judges have been overruled by events — self-
limitation can be seen to be the path to judicial
wisdom and institutional prestige and stability.’”
xxx
32. While non-classification arbitrariness is tested
based on the proportionality test, where the means are
required to be proportional to the object, classification
arbitrariness is tested on the rational nexus test, where
it is sufficient if the means share a “nexus” with the
object. The degree of proof under the test would impact
the judgment of this Court on whether the law is under-
inclusive or over-inclusive. A statute is “under-
inclusive” if it fails to regulate all actors who are part of
the problem. It is “over-inclusive” if it regulates actors
who are not a part of the problem that the statute seeks
to address. The determination of under-inclusiveness
and over-inclusiveness, and degree of deference to it is
dependent on the relationship prong (“rational nexus”
or “proportional”) of the test.
W.P. (C) No. 960 of 2021 Page 44 of 99
33. The nexus test, unlike the proportionality test, is not
tailored to narrow down the means or to find the best
means to achieve the object. It is sufficient if the means
have a “rational nexus” to the object. Therefore, the
courts show a greater degree of deference to cases
where the rational nexus test is applied. A greater
degree of deference is shown to classification because
the legislature can classify based on the degrees of
harm to further the principle of substantive equality,
and such classification does not require mathematical
precision. The Indian courts do not apply the
proportionality standard to classificatory provisions.
Though the two-Judge Bench in Anuj Garg [Anuj
Garg v. Hotel Assn. of India, (2008) 3 SCC 1]
articulated the proportionality standard for protective
discrimination on the grounds in Article 15; and
Malhotra, J. in Navtej Singh Johar [Navtej Singh
Johar v. Union of India, (2018) 10 SCC 1 : (2019) 1 SCC
(Cri) 1] held that less deference must be allowed when
the classification is based on the “innate and core trait”
of an individual, this is not the case to delve into it.
Since the classification in the impugned scheme is
based neither on the grounds in Article 15 nor on the
“innate and core trait” of an individual, it cannot be
struck down on the alleged grounds of under-
inclusiveness and over-inclusiveness. ”
(Emphasis supplied)
73. What is discernable from the aforesaid discussion is that the
distinction created by Section 60(4) of the 2020 Code between a
woman legally adopting a child below the age of three months
and those who adopt a child aged three months or above must
have a rational nexus with the intention and object of the 2020
Code.
W.P. (C) No. 960 of 2021 Page 45 of 99
74. The learned ASG on behalf of the respondents submitted that
the impugned provision has been framed with an objective to
strike a balance between the rights of adoptive mothers and the
concerns of the employers. He further submitted that the
classification under the impugned provision is reasonable as a
child older than three months does not have the same intensive
dependency on the caregiver.
75. Undoubtedly, the fundamental objective of the 2020 Code is to
recognize human dignity by guaranteeing labour and economic
protection to persons who are temporarily deprived of their
capacity to fully participate in the workforce. There is no
gainsaying that the protection granted earlier under the MB Act,
and now subsumed within the 2020 Code, has been conceived
with due regard to the multifaceted role of a woman as a mother.
76. The legislation acknowledges the indispensable contribution of
a woman in familial stability, her responsibility in nurturing and
caring for a child, and the physical and emotional demands
attached to motherhood. By providing income security and
institutional support during this critical phase, the legislation
seeks to ensure that motherhood does not operate as a source
of disadvantage at a work place, but is instead accommodated
as a socially valuable function warranting protection and
respect.
77. The purpose of maternity leave neither varies with the nature of
employment nor with the manner in which the child is brought
W.P. (C) No. 960 of 2021 Page 46 of 99
into the life of the mother. When we look closely, the natural
effect of maternity benefit is to facilitate the physical and
emotional adjustment of a mother, ensure the welfare and
holistic development of a child, and promote bonding between
parents and children during the crucial initial phase of family
integration.
78. Thus, taking into consideration the aforementioned object and
intention of the 2020 Code, could it be said that women adopting
a child aged three months or above do not require the same
protection as is afforded to women adopting a child below the
age of three months? The answer is an emphatic ‘No’. We say so
because the object of maternity benefit is not associated with
the biological process of childbirth alone but also takes into
account a holistic understanding of attainment of motherhood
and consequent fulfillment of the role.
79. What flows from the aforesaid is that the need for economic
security, institutional support, and protection of dignity does
not diminish merely on account of the age of the child at the
time of adoption. The necessity of nurturing, care, and family
integration remains equally relevant and pressing irrespective of
whether the adopted child is below or above the age of three
months.
80. In light of the object of the 2020 Code, women who adopt a child
aged three months or above are similarly situated to women who
adopt a child below the age of three months, insofar as their
W.P. (C) No. 960 of 2021 Page 47 of 99
roles, responsibilities, and caregiving obligations are concerned.
The essential attributes, capacities, and commitments of
adoptive mothers do not undergo any material change merely on
account of the age of the child at the time of adoption and the
immediate period following the adoption.
81. We are of the considered view that the distinction drawn by
Section 60(4) of the 2020 Code, does not have a rational nexus
with the underlying beneficial object of the statute. The
submission canvassed on behalf of the respondents proceeds on
a narrow and restrictive understanding of adoption by limiting
it to “caregiving responsibilities” towards an infant. Such a view
disregards the bilateral process of adjustment and integration of
the adopted child with the adoptive family. This disparity not
only marginalizes the role that adoptive parents play in the life
of the child but also reduces the recognition of their
responsibilities.
82. While adoption may not involve the physical tribulations
associated with the biological process of giving birth, or
intensified caregiving responsibilities for an infant, the
psychological and emotional factors assume significant
importance, thereby requiring the mother to devote time to forge
the bond of motherhood with the adopted child. A general
approach which fails to consider the nuances associated with
modern parenting would denigrate the understanding of
motherhood, which flows from the status of being a mother and
W.P. (C) No. 960 of 2021 Page 48 of 99
not merely from the manner of its attainment. Such an approach
would also inevitably disregard the welfare of the child.
83. The process of adoption itself entails significant emotional,
psychological, and practical adjustments for both the child and
the adoptive mother. Children adopted at any age require
sustained care, reassurance, and stable parental presence to
overcome past vulnerabilities and integrate into a new familial
environment. This is even more imperative to allow such
mothers to avail themselves of the leave. In such circumstances,
denying maternity benefit solely on the basis of an arbitrary age
threshold disregards these essential aspects of adoption and
undermines the very purpose of social welfare legislation.
84. The absence of an age limit assumes greater importance when
we consider the position of children with disabilities. It is a
matter of common knowledge that children with disabilities
often wait considerably longer to be adopted as compared to
other children. The process of identifying adoptive parents,
ensuring that they are capable of providing the required care,
and completing the necessary formalities would ordinarily take
longer.
85. In such circumstances referred to above, confining the benefit
of maternity leave where a child is adopted at a prescribed age
would operate to the detriment of children with disabilities. It
would also discourage the prospective parents from adopting
children who require their presence during the initial period of
W.P. (C) No. 960 of 2021 Page 49 of 99
adjustment. The need for parental presence, patience, and
emotional support is often more pronounced in the case of
children with disabilities. Thus, in such circumstances, in
absence of any parental leave, maternity benefit leave enables
the adoptive mothers to devote adequate time towards
nurturing, rehabilitation, and emotional bonding with the child.
86. This issue also assumes a distinct dimension in the case of
single adoptive mothers. Unlike in a traditional family setup
where caregiving responsibilities may be shared between two
parents, a single adoptive mother bears the entire responsibility
of integrating the child into the family environment while
simultaneously discharging her professional obligations.
87. In the absence of adequate maternity benefit, a single adoptive
mother may be compelled to choose between her employment
and the immediate needs of the adopted child. Such a
predicament undermines the very purpose of social welfare
legislation designed to support working women. The law cannot
overlook the practical realities. In such circumstances,
extending the benefit of maternity leave is not merely a matter
of convenience but a necessary support that enables the woman
to discharge her parental responsibilities while securing her
economic independence.
88. In such a view of the matter, an age limit fails to account for the
diverse realities of adoption. The needs of children and adoptive
families are neither uniform nor reducible to an understanding
W.P. (C) No. 960 of 2021 Page 50 of 99
of adoption in a typical familial structure. A provision that fails
to accommodate these realities undermines the objective of the
legislation and is prone to constitutional attacks.
89. Another aspect which deserves to be mentioned is the absence
of any graded entitlement to maternity benefit in the impugned
provision. In other words, while women adopting children
younger than three months are entitled to maternity benefit for
a period of 12 weeks, women adopting children even a day older
than three months are not entitled to maternity benefit to any
extent. This approach adopted by the legislature while enacting
the impugned provision does not reflect the real-world
requirement of care and nurturing, which does not come to a
sudden halt upon the attainment of a certain mathematical
number, but gradually tapers with the proper integration of the
child with the new environment, especially the parents. While it
could be argued that the legislature could have provided for a
graded entitlement to maternity benefits dependent upon the
age of the child, however, such a situation does not arise for
consideration in lieu of the either-or approach adopted by the
legislature in the impugned provision.
90. The impugned provision also fails in including all those who are
similarly placed, i.e., adoptive mothers. Thus, although the
classification expressed in the words, “ a woman who legally
adopts a child…shall be entitled to maternity benefit for a period
of twelve weeks ”, seeks to give a benefit in recognition of gender
equity, and in that sense, it bears a rational relation to the
W.P. (C) No. 960 of 2021 Page 51 of 99
intention and object of the statute, yet it nonetheless fails to
conform to constitutional principles of equality because it
qualifies such benefit to “ a woman who legally adopts a child
below the age of three months ”. Thus, it leaves all the similarly
situated women who legally adopt a child aged three months or
above.
91. We are of the view that the impugned provision, i.e., Section
60(4) of the 2020 Code, to the extent that it prescribes an age
limit of three months, is discriminatory because first , it does not
disclose a reasonable distinction between women who adopt a
child below the age of three months and those who adopt a child
aged three months or above. Secondly , the particular
differentiation, which is sought to be made, has no nexus with
the object sought to be achieved. Thirdly , the classification
suffers from under-inclusiveness.
92. Section 60(4) of the 2020 Code, in effect, operates unequally
upon adoptive mothers who are similarly situated, resulting in
discrimination without reasonable justification. As a necessary
consequence, Section 60(4) of the 2020 Code violates the
mandate of equality enshrined under Article 14 of the
Constitution. The classification under the Act is palpably
unreasonable and arbitrary.
93. When the Amendment Act, 2017, was introduced by the then
Minister for Labour and Employment, this very issue was raised
during the debates. Although a query was posed regarding the
W.P. (C) No. 960 of 2021 Page 52 of 99
yardstick adopted for capping the age of a child at three months
for an adoptive mother to avail maternity benefit, yet it was left
unanswered. The question reads thus:-
“ […]Apart from that, there is a criterion for the
commissioning mother and for a mother adopting
legally, if I understand it correctly that the child must
be less than three months. Now, what I do not
understand is that what is the reason for that
criteria. Today, if I have four month old child which I
have got through surrogacy or which I have got through
adoption, why should this law discriminate against a
child which is four or five months? If there is any
justification for it, then I hope that the Hon. Minister will
clarify what that justification is.[…] ”
94. Another submission was canvassed by the respondents that in
case an adoptive mother adopts a child aged more than three
months, she can avail benefit of the crèche facilities available at
her establishment. The submission although seemingly appears
to be lucrative yet the same in our considered opinion is flawed
for the following reasons.
95. The limitation of Section 67 of the 2020 Code, in the particular
circumstances, lies in the fact that the statutory obligation of an
establishment to provide crèche facility arises only when there
are fifty employees. A large number of establishments, more
particularly, smaller establishments, therefore fall outside the
ambit of this requirement, leaving a significant section of
working women without access to such facilities.
96. Further, there is no gainsaying that the provision of a crèche
facilities within an establishment is not a substitute for
W.P. (C) No. 960 of 2021 Page 53 of 99
maternity leave. The realization of the right of maternity benefit
must not be contingent on the number of employees. Maternity
leave serves a distinct purpose, as elucidated in the foregoing
paragraphs of this judgment. A crèche facility, on the other
hand, merely provides a place for the child to remain during
working hours and cannot replace the indispensable presence
and care of the mother during this period.
97. When the benefit of maternity leave is not granted to all mothers,
in some situations, she may be compelled either to leave the
child at home, rely on the assistance of an older sibling, or take
the child with them to the workplace, thereby compromising the
child’s health and safety. Where the older sibling is a girl child,
such arrangements often result in her being withdrawn from
school, which reinforces the vicious cycle of gender inequality.
98. In light of the aforesaid discussion, we may look into the decision
of Werner Van Wyk & Ors. v . Minister of Employment and
Labour , reported in [2025] ZACC 20 . The challenge before the
Constitutional Court of South Africa was with regards to the
constitutional validity of Sections 25, 25A, 25B and 25C of the
Basic Conditions of Employment Act (“BCEA”) respectively. The
provisions largely dealt with maternity and parental leave. The
challenge to the provision was on account of the differentiation
between categories of the parents and children, i.e., a child born
by their birth mother, a child born by surrogacy, and an adopted
child. The challenge to Section 25B is of some relevance to us.
Section 25B of the BCEA was challenged as it capped the age of
W.P. (C) No. 960 of 2021 Page 54 of 99
a child being adopted at 2 years in order for the adoptive parent
to avail parental leave. The provision read thus:-
“ Section 25B deals with adoptive parents. It provides:
“(1) An employee, who is an adoptive parent of a
child who is below the age of two, is subject to
subsection (6), entitled to—
(a) adoption leave of at least ten weeks
consecutively; or
(b) the parental leave referred to in section 25A. ”
(Emphasis is ours)
99. In Werner Van Wyk ( supra ), the respondent conceded that the
provision is violative of the right to human dignity of persons,
more particularly, of women who are not biological mothers. The
Court was of the view that the human dignity of such persons is
violated because they are not afforded the same protection as
biological mothers. It indicated how the absence of provision of
parental leave assumes that women are primary caregivers of
children. We shall discuss the importance of paternity leave in
some detail in the latter part of this judgment.
100. The Court applied the principle of permissible classification to
assess whether the differentiation between parents on the basis
of the child’s age was constitutionally and statutorily valid. It
observed that, on account of such differentiation, a child above
the age of two years is denied any opportunity to adjust or
integrate into the adopted family. It was further highlighted, and
rightly so, that imposing an age limit on the child discourages
the prospective parents and reduces the likelihood of such
children being adopted. The relevant observations read thus:-
W.P. (C) No. 960 of 2021 Page 55 of 99
“ 55. It is trite that if section 9 is invoked to attack a
legislative provision or executive conduct on the ground
that it differentiates between people or categories of
people in a manner that amounts to unequal treatment
or unfair discrimination, the first enquiry must be
directed to the question of whether the impugned
provision does, in fact, differentiate between people or
categories of people. Here, the answer must be in the
affirmative. That the provisions differentiate between
categories of adoptive parents and their children on the
basis of age cannot be disputed. Indeed, adoptive
parents of children who are older than two years, and
their children, are treated differently from parents and
children younger than two years .
56. The next enquiry is if the provision does so
differentiate, then in order not to fall foul of section 9(1)
of the Constitution, there must be a rational connection
between the differentiation in question and the
legitimate governmental purpose it is designed to
further or achieve. If it is justified in that way, then it
does not amount to a breach of section 9(1).
xxx
58. The Minister’s arguments in this regard do not hold
water. The age cap set is in respect of children under
the age of two years and the maternity leave has such
an effect that birth parents leave their children who are
much younger than two years. Birth mothers return to
work whilst their children are three to four months old,
unless they make special arrangements with their
employer. If the Minister is concerned about equalising
the two scenarios, it has not been argued why a four,
six or 12-month age cap would be inappropriate. There
is no explanation as to how two years was set as an
appropriate age cap and why it should be regarded as
a reasonable cap. I fail to see the creation of the
“equivalence” alleged by the Minister.
59. I also reject the argument that the differentiation
does not occur in respect of children. Of course, there is
a financial benefit resulting from the UIF claim, but the
adopted children older than two years are treated
W.P. (C) No. 960 of 2021 Page 56 of 99
differently because they are not afforded time to be
with their employed parents when they join their new
families and there is no opportunity afforded for them
to adjust to the new family at all. It also cannot be
gainsaid, as the Commission has argued, that the lack
of parental leave benefits for parents of adopted
children who are two years and older further decreases
the likelihood of such children being adopted because
there is absolutely no leave after such children join
their new family. ”
(Emphasis supplied)
101. The Court further observed that the need for adjustment to a
new environment cannot be negated. It rejected the submission
on behalf of the respondent that the provision attempts to place
adoptive parents on the same pedestal as biological parents.
This meant that the age limit affords similar benefits to different
categories of parents. However, the Court held that the
maternity benefit policy could not be framed in ignorance of the
welfare of the child. In this context, the Court observed thus:-
“ 65. This argument by the Minister is flawed, as
already stated. It does not address the differentiation
between adopted children below the age of two years
and those above it. It focuses on the parents. However,
the focus cannot be on the parents alone to the
exclusion of the children, because the whole regime
around maternity, paternity and adoption leave centres
around both the parents and the children, with the
parents being the givers of nurturing, and the children
being the recipients or beneficiaries. ”
(Emphasis supplied)
102. Most importantly, while equating the leave available to adoptive
parents with that granted to biological parents, the Court
W.P. (C) No. 960 of 2021 Page 57 of 99
emphasized the difference in the underlying purpose of leave in
the case of adoptive parents as opposed to biological parents and
surrogate parents. The Court declared the age limit of two years
as unconstitutional, and left it to the legislature to determine a
reasonable age limit, if any, in accordance with constitutional
principles. The relevant observations read thus:-
“ 71. Furthermore, when analysing whether adoptive
leave should mirror the leave provided to other
categories of parents, it is evident that the two are
fundamentally different. Whilst leave for new-borns is
focused on supporting the immediate and intensive
needs of infancy, adoptive leave also addresses a
broader spectrum of challenges. Adoptive parents,
particularly those caring for children over the age of
two, face the added complexities of facilitating the
child’s integration into a new family and navigating
cultural and environmental shifts. This multifaceted
responsibility, which extends beyond mere physical
care, calls for a tailored leave framework that
recognises the unique demands of adoption, rather
than a one-size-fits-all approach.
72. Therefore, parental leave, irrespective of the child’s
age, is not solely about meeting the needs of the child,
such as nurturing, but also to allow children of different
ages a period to integrate and adapt in the new family
unit. It cannot be disputed that in certain instances
adopted children may require additional care and
support depending on the circumstances they come
from. ”
(Emphasis supplied)
103. It would also be apposite to refer to the decision by the European
Court of Human Rights in Topčić-Rosenberg v. Croatia ,
Application no. 1939/11 . The applicant therein, an adoptive
mother of a three year-old child, was aggrieved by the non-grant
W.P. (C) No. 960 of 2021 Page 58 of 99
of maternity leave, which was contrary to Article 14 read with
Article 8 of the European Convention on Adoption of Children
(“Convention”). Although, the benefit of maternity and parental
leave is governed by the Maternity and Parental Benefits Act,
2009, yet the Court viewed the issue largely through the prism
of Convention. The provisions read thus:-
“ Article 8
“1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority
with the exercise of this right except such as is in
accordance with the law and is necessary in a
democratic society in the interests of national security,
public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights
and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in
[the] Convention shall be secured without
discrimination on any ground such as sex, race, colour,
language, religion, political or other opinion, national or
social origin, association with a national minority,
property, birth or other status.”
104. The Court held that Article 14 read with Article 8 of the
Convention squarely applied to the case. It did not see a
reasonable justification behind difference in treatment between
an adoptive mother and a biological mother insofar as maternity
leave and related allowances of an adoptive mother were
concerned. Such distinction without a justification was held to
be discriminatory. The purpose of such leave in case of an
adoptive child was identified to be care-giving responsibilities,
W.P. (C) No. 960 of 2021 Page 59 of 99
nurturing, and bonding for integration of the child in the
adoptive family. The relevant observations read thus:-
“ 42. The Court considers that when assessing the
domestic practice in the present case, in which the
authorities refused to grant maternity leave to an
adoptive mother, it must take into account two
considerations. First, for an adoptive mother the
purpose of parental or maternity leave is to enable her
to stay at home to look after her child. In this respect
she is in a similar situation to a biological parent (see,
mutatis mutandis, Petrovic, cited above, § 36,
and Konstantin Markin, cited above, § 132). Secondly,
the State should refrain from taking any actions which
could prevent the development of ties between the
adoptive parents and their child and the integration of
the child into the adoptive family (see, mutatis
mutandis, Wagner and J.M.W.L. v. Luxembourg,
no. 76240/01 , §§ 119 and 121, 28 June 2007).
xxx
47. Accordingly, being unable to discern any objective
and reasonable justification for the difference in
treatment of the applicant as an adoptive mother, in
granting her the right to maternity leave after the
adoption of her child, and a biological mother, who had
such a right from the time of the birth, the Court
considers that such a difference in treatment amounted
to discrimination. ”
(Emphasis supplied)
105. The net effect of the aforesaid discussion is that the absence of
a biological connection does not diminish the depth of their
bond. We cannot emphasize more on the fact that motherhood
is ultimately shaped through affection, selfless care, and not
through blood alone. This is one of those instances where law is
confronted by a question which cannot be answered by statute
alone.
W.P. (C) No. 960 of 2021 Page 60 of 99
C. The right to a dignified life for adoptive parents and
adopted child under Article 21 of the Constitution
i. Adoption as an expression of reproductive autonomy
106. The second submission canvassed on behalf of the petitioner is
that the impugned provision violates the adoptive mothers’ and
adoptive children’s right to live life with dignity as enshrined
under Article 21 by denying the mother the right to motherhood
and the adoptive children the right to receive sufficient care to
be rehabilitated and integrated into his/her new family.
107. Although biology has traditionally been the predominant lens
through which kinship and family relationships are understood,
yet non-biological modes of building a family are no less
legitimate or meaningful. The decision to adopt may be
motivated by a variety of personal, social, or humanitarian
reasons. Thus, adoption is an equally valid pathway for the
creation of a family. It is not biology that constitutes a family of
a mother, father, and children, rather, it is the shared meaning,
responsibility, and emotional bonds that sustain such a
relationship. We say so because biological factors, by
themselves, do not determine family behaviour or familial
identity.
108. In such circumstances referred to above, an adopted child is no
different from a so-called “natural” child, the only distinction is
that the process of adoption is more visible and legally
acknowledged. Thus, the act of adoption may carry an equally,
W.P. (C) No. 960 of 2021 Page 61 of 99
if not more, profound affirmation of parenthood. There is no
doubt that sharing of meaning, affection, and responsibility lies
at the heart of both family creation and the adoption process.
109. A three Judge Bench of this Court in Suchita Srivastava v .
Chandigarh Admn. , reported in (2009) 9 SCC 1 , affirmed the
reproductive rights of the appellant-victim, who was allegedly
raped while staying in a Government-run welfare institution,
when she expressed her willingness to carry the pregnancy till
its full term despite being diagnosed with mild mental
retardation.
The Court declined to discount her decision on the ground
that it was “questionable” and instead looked beyond prevailing
social prejudices to accord primacy to her right to make
reproductive choices under Article 21. The Court held that the
Medical Termination of Pregnancy Act, 1971, recognizes and
respects the personal autonomy of a woman in matters relating
to reproduction. The Court further directed the respondents to
ensure that adequate medical facilities were provided so as to
safeguard her health and well-being during the course of the
pregnancy. The relevant observations read thus:-
“ 22. There is no doubt that a woman's right to make
reproductive choices is also a dimension of “personal
liberty” as understood under Article 21 of the
Constitution of India. It is important to recognise that
reproductive choices can be exercised to procreate as
well as to abstain from procreating. The crucial
consideration is that a woman's right to privacy, dignity
and bodily integrity should be respected. This means
that there should be no restriction whatsoever on the
exercise of reproductive choices such as a woman's
W.P. (C) No. 960 of 2021 Page 62 of 99
right to refuse participation in sexual activity or
alternatively the insistence on use of contraceptive
methods. Furthermore, women are also free to choose
birth control methods such as undergoing sterilisation
procedures. Taken to their logical conclusion,
reproductive rights include a woman's entitlement to
carry a pregnancy to its full term, to give birth and to
subsequently raise children. However, in the case of
pregnant women there is also a “compelling State
interest” in protecting the life of the prospective child.
Therefore, the termination of a pregnancy is only
permitted when the conditions specified in the
applicable statute have been fulfilled. Hence, the
provisions of the MTP Act, 1971 can also be viewed as
reasonable restrictions that have been placed on the
exercise of reproductive choices.
xxx
59. Lastly, we have urged the need to look beyond
social prejudices in order to objectively decide whether
a person who is in a condition of mild mental
retardation can perform parental responsibilities.
60. The findings recorded by the expert body which
had examined the victim indicate that the continuation
of the pregnancy does not pose any grave risk to the
physical or mental health of the victim and that there is
no indication that the prospective child is likely to suffer
from a congenital disorder. However, concerns have
been expressed about the victim's mental capacity to
cope with the demands of carrying the pregnancy to its
full term, the act of delivering a child and subsequent
childcare. In this regard, we direct that the best medical
facilities be made available so as to ensure proper care
and supervision during the period of pregnancy as well
as for post-natal care. ”
(Emphasis supplied)
110. We may look into the decision of K.S. Puttaswamy (Privacy-
9J.) v . Union of India , reported in (2017) 10 SCC 1 , wherein
this Court recognized the multifaceted nature of the right to
W.P. (C) No. 960 of 2021 Page 63 of 99
privacy, which encompasses, , decisional autonomy in
inter alia
matters relating to intimate personal choices. Such autonomy
includes decisions governing reproduction and family life,
thereby affirming the individual’s freedom to make choices
concerning procreation and parenthood without unwarranted
State interference. The relevant observations read thus:-
“ 248. Privacy has distinct connotations including (i)
spatial control; (ii) decisional autonomy; and (iii)
informational control. [ Bhairav Acharya, “The Four
Parts of Privacy in India”, Economic & Political
Weekly (2015), Vol. 50 Issue 22, at p. 32.] Spatial
control denotes the creation of private spaces.
Decisional autonomy comprehends intimate personal
choices such as those governing reproduction as well
as choices expressed in public such as faith or modes
of dress. Informational control empowers the individual
to use privacy as a shield to retain personal control over
information pertaining to the person.[…] ”
(Emphasis supplied)
111. In X2 v . State (NCT of Delhi) , reported in (2023) 9 SCC 433 ,
wherein one of us, J. B. Pardiwala, J., was a part of the Bench,
observed that the bouquet of reproductive rights encompasses
at the very least the right of women to have or not have children.
The Court emphasized that reproductive autonomy forms an
integral part of personal liberty and decisional autonomy under
Article 21 of the Constitution. The relevant observations read
thus:-
“ 101. The ambit of reproductive rights is not restricted
to the right of women to have or not have children. It
also includes the constellation of freedoms and
entitlements that enable a woman to decide freely on
all matters relating to her sexual and reproductive
W.P. (C) No. 960 of 2021 Page 64 of 99
health. Reproductive rights include the right to access
education and information about contraception and
sexual health, the right to decide whether and what
type of contraceptives to use, the right to choose
whether and when to have children, the right to choose
the number of children, the right to access safe and
legal abortions, and the right to reproductive
healthcare. Women must also have the autonomy to
make decisions concerning these rights, free from
coercion or violence.
102. Zakiya Luna has, in a 2020 publication, argued
that reproduction is both biological and political. [
Zakiya Luna, Reproductive Rights as Human Rights :
Women of Color and Fight for Reproductive Justice
(NYU Press, 2020).] According to Luna, it is biological
since physical bodies reproduce, and it is political since
the decision on whether to reproduce or not is not solely
a private matter. This decision is intimately linked to
wider political, social, and economic structures. A
woman's role and status in family, and society
generally, is often tied to childbearing and ensuring the
continuation of successive generations. ”
(Emphasis supplied)
112. What can be discerned from the above discussion is that when
family structures and modes of parenthood have evolved and
diversified, parenthood is not confined to the biological act of
giving birth. It includes a broader spectrum of choices through
which individuals realize their aspiration to build a family. Thus,
an atypical or unconventional familial setup does not strip away
the rights guaranteed by the Constitution.
113. In the aforesaid context, reproductive autonomy, therefore,
cannot be narrowly understood as being limited to biological
W.P. (C) No. 960 of 2021 Page 65 of 99
reproduction alone. Adoption, too, represents a conscious and
meaningful exercise of the choice to create and nurture a family,
and must be viewed as falling within the broader spectrum of
reproductive decision-making.
114. The protection of maternity benefit cannot be confined keeping
in mind the age of the child. More so, when this benefit seeks to
support motherhood and the welfare of the child, it must extend
to adoptive mothers who undertake the equally significant
responsibilities of nurturing and raising a child.
115. We are at one with the learned counsel appearing on behalf of
the petitioner that the impugned provision, by stipulating an age
limit, fails to recognize the right of reproductive autonomy of
those adoptive mothers who adopt a child aged three months or
more. It denudes such adoptive mothers of the ability to
meaningfully exercise and enjoy their right to decisional
autonomy, dignity, and bodily integrity under Article 21.
116. What flows from the aforesaid discussion and need not be
elaborated more is that the decision to have children is not
confined to the biological birth. The choice to bring a child into
one’s life may also manifest through non-biological means such
as adoption, which equally reflects an individual’s autonomy in
matters of parenthood and family formation. A mother takes
birth the day a child comes into her life. While the day of the
entry of the child in the mother’s life slightly varies in case of
biological route of attainment of motherhood, what follows after
W.P. (C) No. 960 of 2021 Page 66 of 99
the coming of the child in the mother’s life is a universal feeling,
shared by all mothers - whether adoptive, surrogate or
biological.
117. Recently, in K. Umadevi ( supra ), Ujjal Bhuyan, J., succinctly
highlighted the constitutional support to social security benefits
through the Directive Principles of State Policy. The relevant
observations read thus:-
“ 30. Article 42 of the Constitution of India which is one
of the directive principles of State policy mandates that
the State shall make provisions for securing just and
humane conditions of work and for maternity relief.
Article 42 is as follows:
“42. Provision for just and humane conditions of
work and maternity relief.—The State shall make
provision for securing just and humane conditions of
work and for maternity relief.”
31. Another directive principle is contained in Article 51
of the Constitution of India. Amongst others, it says
through Article 51(c) that the State shall endeavour to
foster respect for international law and treaty
obligations in the dealings of organised people with one
another. ”
(Emphasis supplied)
ii. Scope and application of the principle of “ best interest of
the child ”
118. For this particular discussion, it would be worthwhile to refer to
the observations made by this Court in Lakshmi Kant Pandey
v . Union of India , reported in ( 1984) 2 SCC 244 , wherein this
Court prior to enactment of the JJ Act took note of the guiding
principles contained in the Declaration of the Rights of the Child
adopted by the United Nations General. The Declaration states
W.P. (C) No. 960 of 2021 Page 67 of 99
that every child must be provided with opportunities and
facilities to enable their development by all possible means, and
best interest of the child shall be the paramount consideration
in all laws and policies concerning children.
This Court categorically observed that in situations where it
is not possible for the biological parents to care for the child, an
adoptive family would be the most appropriate alternative to
provide a loving and nurturing environment. It emphasized that
every child has the right to grow up in a loving and caring family.
The relevant extract reads thus:-
“ 7. There has been equally great concern for the
welfare of children at the international level
culminating in the Declaration of the Rights of the Child
adopted by the General Assembly of the United Nations
on November 20, 1959. The Declaration in its Preamble
points out that “the child, by reason of his physical and
mental immaturity, needs special safeguards and care,
including appropriate legal protection, before as well as
after birth”, and that “mankind owes to the child the
best it has to give” and proceeds to formulate several
Principles of which the following are material for our
present purpose:
“Principle 2.—The child shall enjoy special
protection and shall be given opportunities and
facilities, by law and by other means, to enable him
to develop physically, mentally, morally, spiritually
and socially in a healthy and normal manner and in
conditions of freedom and dignity. In the enactment
of laws for this purpose the best interests of the child
shall be the paramount consideration.
Principle 3.—The child shall be entitled from his
birth to a name and a nationality.
Principle 6.—The child, for the full and harmonious
development of his personality, needs love and
understanding. He shall, wherever possible, grow
up in the care and under the responsibility of his
parents, and in any case in an atmosphere of
W.P. (C) No. 960 of 2021 Page 68 of 99
affection and of moral and material security; a child
of tender years shall not, save in exceptional
circumstances, be separated from his mother.
Society and the public authorities shall have the
duty to extend particular care to children without a
family and to those without adequate means of
support. Payment of State and other assistance
towards the maintenance of children of large
families is desirable.
Principle 9.—The child shall be protected against all
forms of neglect, cruelty and exploitation. He shall
not be the subject of traffic, in any form.
Principle 10.—The child shall be protected from
practices which may foster racial, religious and any
other form of discrimination. He shall be brought up
in a spirit of understanding, tolerance, friendship
among peoples, peace and universal brotherhood
and in full consciousness that his energy and
talents should be devoted to the service of his fellow
men.”
Every child has a right to love and be loved and to grow
up in an atmosphere of love and affection and of moral
and material security and this is possible only if the
child is brought up in a family. The most congenial
environment would, of course, be that of the family of
his biological parents. But if for any reason it is not
possible for the biological parents or other near relative
to look after the child or the child is abandoned and it
is either not possible to trace the parents or the parents
are not willing to take care of the child, the next best
alternative would be to find adoptive parents for the
child so that the child can grow up under the loving care
and attention of the adoptive parents. The adoptive
parents would be the next best substitute for the
biological parents.[…] Such adoption would be quite
consistent with our National Policy on Children because
it would provide an opportunity to children, otherwise
destitute, neglected or abandoned, to lead a healthy
decent life, without privation and suffering arising from
poverty, ignorance, malnutrition and lack of sanitation
and free from neglect and exploitation, where they
would be able to realise “full potential of growth”.[…]
W.P. (C) No. 960 of 2021 Page 69 of 99
(Emphasis supplied)
119. We must now advert to the definition of “ best interest of child ” as
given under the JJ Act. Section 2(9) of the Act reads thus:-
“ (9) “best interest of child” means the basis for any
decision taken regarding the child, to ensure
fulfilment of his basic rights and needs, identity,
social well-being and physical, emotional and
intellectual development ”
(Emphasis is ours)
120. Further, Section 3 of the JJ Act states that all the authorities
while implementing the provisions of JJ Act shall be guided by
the principle of best interest of child. The relevant part of the
provision reads thus:-
“( iv) Principle of best interest: All decisions regarding
the child shall be based on the primary
consideration that they are in the best interest of the
child and to help the child to develop full potential. ”
121. We may also look into the relevant regulations of the CARA
Regulations guided by the principle of the best interest of the
child. Regulation 3 of the said regulation stipulates one of the
fundamental principles governing adoption, within which the
child’s best interest is considered of paramount importance. The
said regulation reads thus:-
“ 3. Fundamental principles governing adoption.―
The following fundamental principles shall govern
adoptions of children from India, namely:― (a) the
child's best interests shall be of paramount
consideration, while processing any adoption
placement ;”
W.P. (C) No. 960 of 2021 Page 70 of 99
122. Thus, the common thread flowing across the aforesaid provision
is that the principle of the best interests of the child constitutes
the core of all laws and policies concerning children. It reflects
the recognition that children, by reason of their age and
vulnerability, they require special care, protection, and
opportunities for development. The concept of best interest is
not confined to a narrow or immediate understanding of welfare
but rather, it comprises the overall well-being of the child. The
principle of best interest seeks to ensure that every child is
provided with conditions that promote their healthy
development.
123. On a plain reading of the aforesaid provisions, it is limpid that
the guiding premise underlying this principle is that every child
must be given the opportunity to grow in an environment that
nurtures their potential, emotional, and intellectual
development. The family, as a primary unit of care and
protection, plays an indispensable role in fulfilling these
objectives. A stable and harmonious home environment provides
the foundation which enables a child to realize their fullest
potential.
124. In Dasari Anil Kumar v . Child Welfare Project Director ,
reported in 2025 SCC OnLine SC 1689 , the appellants who
were adoptive parents, were aggrieved by the action of police in
taking away the custody of minor children from them without
the authority of law. This Court, having regard to the best
interest of the children, the bonding between the parents and
W.P. (C) No. 960 of 2021 Page 71 of 99
the child, the principle of family responsibility, and the principle
of safety, directed that the custody of the children be restored to
the adoptive parents. The relevant observations read thus:-
“ 11. This is in the interest of the children owing to the
bonding between the “adoptive parents” and the
respective children. This is by following the principle of
the best interest of the child; principle of family
responsibility; principle of safety, positive measures,
principle of Institutionalization as a measure of last
resort, principle of repatriation and restoration, which
are also enunciated as general principles in
Section 3 of the Juvenile Justice (Care and Protection of
Children) Act, 2015.
xxx
14. However, as a safeguard and in the best interest of
the children, we direct that the Member Secretary of the
State Legal Services Authority and/or the Member
Secretary of the District Legal Services Committee,
within whose jurisdiction the “adoptive parents” reside
to seek reports on the welfare and progress of the child
from the respective “adoptive parents” on a quarterly
basis starting from November, 2025 onwards. The
Member Secretary of the State Legal Services Authority
and/or the Member Secretary of the District Legal
Services Committee will also be at liberty to depute a
Child Welfare Expert to inspect the home where the
child and the “adoptive parents” reside. This is to
ensure the welfare and progress of the children who
have been returned to the “adoptive parents”.
15. We again clarify that we have passed the aforesaid
order in the best interest of the children concerned in
the instant case as they have been with their adoptive
parents for a few months upto three years in these
cases .”
(Emphasis supplied)
125. In the aforesaid context, we may also refer to a decision by
Labour Court of South Africa, Durban in MIA v . State
W.P. (C) No. 960 of 2021 Page 72 of 99
Information Technology Agency (Pty) Ltd. , [2015] ZALCD 20 ,
which dealt with the denial of “maternity” leave to a male
employee. The respondent therein refused to grant leave on the
basis that its policies and the Basic Conditions of Employment
Act covered only “female” employees. In the case before the
Court, the surrogacy agreement provided that the applicant
would play the role of usually performed by the birthmother.
In such circumstances, the Court held that maternity leave
is associated to the welfare and health of the child’s mother as
well as best interests of the child. While keeping in mind the best
interest of the child, the Court further held that the policy of the
respondent unfairly discriminates against the applicant and he
should be entitled to “maternity leave”. The relevant
observations read thus:-
“ [13] This approach ignores the fact that the right to
maternity leave as created in the Basic Conditions of
Employment Act in the current circumstances is an
entitlement not linked solely to the welfare and health
of the child’s mother but must of necessity be
interpreted to and take into account the best interests
of the child. Not to do so would be to ignore the Bill of
Rights in the Constitution of the Republic of South
Africa6 and the Children’s Act. Section 28 of the
Constitution provides:
28 Children
(1) every child has a right-
a. …
b. To family care or parental care …
[14] The Children’s Act specifically records not only that
the act is an extension of the rights contained in Section
28 but specifically provides:
Best interests of child paramount.
W.P. (C) No. 960 of 2021 Page 73 of 99
In all matters concerning the care, protection and
well-being of a child the standard that the child’s
best interest is of paramount importance must be
applied.
xxx
[16] The surrogacy agreement specifically provides that
the newly born child is immediately handed to the
commissioning parents. During his evidence the
applicant explained that for various reasons that he
and his spouse had decided that he, the applicant,
would perform the role usually performed by the
birthmother by taking immediate responsibility for the
child and accordingly he would apply for maternity
leave. The applicant explained that the child was taken
straight from the surrogate and given to him and that
the surrogate did not even have sight of the child. Only
one commissioning parent was permitted to be present
at the birth and he had accepted this role.
[17] Given these circumstances there is no reason why
an employee in the position of the applicant should not
be entitled to “maternity leave” and equally no reason
why such maternity leave should not be for the same
duration as the maternity leave to which a natural
mother is entitled. ”
(Emphasis supplied)
126. We may also look into the decision by the House of Lords in In
re P & Ors. , [2008] UKHL 38 , wherein the Court dealt with the
issue of whether an unmarried couple could be excluded from
being considered as adoptive parents of a child. In that case, the
male applicant, who was not the child’s biological father, sought
to be recognized as the father, while the female applicant was
the biological mother of the child. However, article 14 of the
Adoption (Northern Ireland) Order, 1987, states that an
adoption order could be made on the application of more than
one person only if the applicants were a married couple.
W.P. (C) No. 960 of 2021 Page 74 of 99
The Court held that such a rule which excluded unmarried
couples from maintaining an application as a potential adoptive
parent was discriminatory and violative of the fundamental
principle of adoption law, i.e., the best interest of child. It was
held that status of an individual with regards to his marital life
cannot be said to be determinative of the fact of child’s best
interest. Thus, the applicants were held to be entitled to apply
to adopt the child. The following observations of Lord Hoffman
and Lord Mance respectively are worthy of reproduction:-
Lord Hoffman
“ 16. The question therefore is whether in this case there
is a rational basis for having any bright line rule. In my
opinion, such a rule is quite irrational. In fact, it
contradicts one of the fundamental principles stated in
article 9, that the court is obliged to consider whether
adoption “by particular…persons” will be in the best
interest of the child. A bright line rule cannot be justified
on the basis of the needs of administrative convenience
or legal certainty, because the law requires the
interests of each child to be examined on a case-by-
case basis. Gillen J said that “the interests of these two
individual applicants must be balanced against the
interests of the community as a whole.” In this
formulation the interests of the particular child, which
article 9 declares to be the most important
consideration, have disappeared from sight, sacrificed
to a vague and distant utilitarian calculation. That
seems to me to be wrong. If, as may turn out to be the
case, it would be in the interests of the welfare of this
child to be adopted by this couple, I can see no basis
for denying the child this advantage in “the interests of
the community as a whole”.
xxx
18. It is one thing to say that, in general terms, married
couples are more likely to be suitable adoptive parents
than unmarried ones. It is altogether another to say
that one may rationally assume that no unmarried
W.P. (C) No. 960 of 2021 Page 75 of 99
couple can be suitable adoptive parents. Such an
irrebuttable presumption defies everyday experience.
The Crown suggested that, as they could easily marry
if they chose, the very fact that they declined to do so
showed that they could not be suitable adoptive
parents. I would agree that the fact that a couple do not
wish to undertake the obligations of marriage is a
factor to be considered by the court in assessing the
likely stability of their relationship and its impact upon
the long term welfare of the child. Once again, however,
I do not see how this can be rationally elevated to an
.”
irrebuttable presumption of unsuitability
Lord Mance
“ 134. The present case concerns the strengthening and
deepening of private and family relationships that can
arise on all sides from adoption. Adoption cements a
family unit. It gives the child maintenance rights
against the adoptor(s). It makes the child a member of
the adoptor(s)’ wider family, and confers inheritance
rights in that connection. It is a process in relation to
which the child’s well-being ought to be paramount.
The fact that proposed adoptors are a married couple
is on any view a material factor. Society is entitled to
place weight on the existence of such a bond. But that
does not mean that every married couple are suitable
or every unmarried couple unsuitable as adoptors. A
close scrutiny of all the circumstances is required in the
particular child’s interests before any adoption can be
sanctioned. A couple’s decision to remain unmarried
cannot determine what is in the child’s best interests.
In today’s world, failure to tie the knot is not to be
equated with lack of actual commitment; and one
would have thought that a joint wish to adopt was
itself, at least to some extent, a counterbalancing factor.
The threshold criterion of marriage which exists under
the Northern Irish legislation looks at the matter in
terms of the couple’s decision whether or not to marry,
rather than from the viewpoint of the child or the
potential benefits of joint adoption for the child. It
excludes all possibility of adoption by all unmarried
W.P. (C) No. 960 of 2021 Page 76 of 99
couples, however longstanding and stable their
relationship It precludes any second stage: any
scrutiny at all of the circumstances, the needs or the
interests of the particular child. The legislation
distinguishes between a married and an unmarried
couple, both equally suitable as adoptors, purely on the
basis of marital status. The line drawn does not avoid
the need for a second stage scrutiny where adoption is
possible. It simply makes adoption and the security
and benefits which it would bring for the child
impossible in the case of this child unless the couple
marry.”
(Emphasis supplied)
127. Similarly, the South African Constitutional Court in Suzanne
Du Toit and Vos v. Minister for Welfare and Population
Development , (2002) 13 BHRC 187 , dealt with the issue of
whether the applicants (same-sex unmarried couple) were
eligible to adopt children as the existing legislation restricted the
right to adopt only to married couples. The Court referred to
Section 28(2) of the Constitution, which states that a child’s best
interest is of paramount importance in every matter concerning
the child.
In such circumstances, the Court held that the exclusion of
the applicants defeats the essence and purpose of adoption
which is to provide stability, commitment, affection and support
for child’s development. The impugned provision was held to be
violative of the principle of best interest of the child as it deprived
them of a stable and loving family. The relevant observations
read thus:-
“ [19] The institutions of marriage and family are
important social pillars that provide for security,
support and companionship between members of our
society and play a pivotal role in the rearing of children.
W.P. (C) No. 960 of 2021 Page 77 of 99
However, we must approach the issues in the present
matter on the basis that family life as contemplated by
the Constitution can be provided in different ways and
that legal conceptions of the family and what
constitutes family life should change as social practices
and traditions change.16 I turn now to consider the
constitutionality of the impugned provisions.
xxx
[21] In their current form the impugned provisions
exclude from their ambit potential joint adoptive
parents who are unmarried, but who are partners in
permanent same-sex life partnerships and who would
otherwise meet the criteria set out in section 18 of the
Child Care Act.20 Their exclusion surely defeats the
very essence and social purpose of adoption which is
to provide the stability, commitment, affection and
support important to a childs development, which can
be offered by suitably qualified persons .
[22] […] The impugned provisions of the Child Care Act
thus deprive children of the possibility of a loving and
stable family life as required by section 28(1)(b) of the
Constitution. This is a matter of particular concern
given the social reality of the vast number of parentless
children in our country. The provisions of the Child Care
Act thus fail to accord paramountcy to the best interests
of the children and I conclude that, in this regard,
sections 17(a) and (c) of the Act are in conflict with
section 28(2) of the Constitution .”
(Emphasis supplied)
128. The overarching theme emerging from these judgments is that
the law across the globe recognizes that the best interest of the
child must remain the paramount consideration in all decisions
affecting a child. It needs no elaboration that children must be
raised in an atmosphere of affection, understanding, and moral
security.
W.P. (C) No. 960 of 2021 Page 78 of 99
129. In the aforesaid context, the principle of the best interests of the
child does not conclude with the completion of the formalities of
adoption or the handing over of custody of the child to the
adoptive parents. It is a continuing obligation that persists
throughout the period a child remains a child, more particularly,
in this context, during which the child integrates into the
adoptive family. The true fulfilment of the child’s welfare lies in
enabling the child to meaningfully adjust, bond, and flourish
within the family environment. The period immediately following
adoption is often the most critical phase in this process, as the
child must acclimatize to unfamiliar surroundings and develop
a sense of belonging within the new family.
130. The net effect of the aforesaid discussion is that the welfare of
the child in adoption extends far beyond the moment of
placement. It entails the child’s health, emotional security, and
other needs, all of which require constant care, and support
from the parent. When Section 60(4) of the 2020 Code imposes
an age limit of three months for the availment of maternity
benefit by an adoptive mother, it fails to adequately account for
these continuing dimensions of the child’s welfare.
D. Examining validity of the impugned provision through its
workability
131. We may look at the matter from one another angle. The learned
counsel appearing for the petitioner vehemently submitted that
Section 60(4) of the 2020 Code fails to take into consideration
the time required for completing the procedure for adoption of
W.P. (C) No. 960 of 2021 Page 79 of 99
orphaned, abandoned, or surrendered children under the JJ Act
and the CARA Regulations, respectively. She would submit that
the adoption process ordinarily takes 2 months or more to be
completed. Consequently, by the time the child is legally placed
with the adoptive mother, the statutory age limit would, in most
cases, stand exhausted, thereby, rendering the provision largely
otiose in its practical application.
132. The following table indicates the timeline of the time required for
a child to be declared legally free for adoption and referred to
prospective adoptive parents (PAPs). It reads thus:-
| SURRENDERED CHILD | ORPHAN OR ABANDONED | |||||
|---|---|---|---|---|---|---|
| CHILD | ||||||
| IDENTIFICATION | ||||||
| T | Execution of<br>Surrender Deed by the<br>parent or guardian. [S.<br>35 of the JJ Act] | T | A child who<br>appears or claims<br>to be an orphan,<br>abandoned or lost<br>shall be brought<br>before the CWC. [S.<br>32(1) of the JJ Act] | |||
| T+60 days<br>(60 days) | The parents or<br>guardian who<br>surrendered the child,<br>have two months’ time<br>to reconsider their<br>decision. [S. 35(3) of<br>the JJ Act] | T+60 days<br>If the child<br>is less than<br>2 years old.<br>(2 months) | The CWC shall take<br>efforts to trace the<br>biological parents<br>or legal guardian of<br>the child.<br>[S. 37(1)(c) of the JJ<br>Act; Rule 19(24)-<br>(27) of the JJ Rules]<br>If the local police<br>report on the non- |
W.P. (C) No. 960 of 2021 Page 80 of 99
| In the meanwhile, the<br>SAA2, DCPU3, CWC<br>shall take steps to<br>explore the possibility<br>of parents retaining<br>the child.<br>[Reg 7(11) of CARA<br>Regulations]<br>The SAA shall<br>intimate the CWC in<br>case surrendering<br>parents have not<br>claimed back the child<br>during the<br>reconsideration<br>period.<br>[Reg 7(15) of CARA<br>Regulations] | T+120<br>If the child<br>is more<br>than 2<br>years old.<br>(4 months) | traceability of<br>biological parents<br>or guardians is not<br>received within the<br>stipulated time,<br>they shall be<br>deemed to be non-<br>traceable.<br>[Reg 6(9)-(11) of the<br>CARA Regulations] | |||
|---|---|---|---|---|---|
| DECLARATION OF LEGALLY FREE FOR ADOPTION | |||||
| T+61 days<br>(No time<br>period<br>stipulated) | The institution where<br>the child has been<br>placed by the CWC<br>shall bring the case<br>before the CWC on<br>completion of two<br>months.<br>CWC may declare the<br>child legally free for<br>adoption. [S. 38(2) of<br>the JJ Act; Rule 19(23)<br>of the JJ Rules] | T+63 days<br>(3 days) | The CWC shall<br>declare the child as<br>being legally free<br>for adoption.<br>[First Proviso to S.<br>38 of the JJ Act;<br>Reg 6(13) of the<br>CARA Regulations] | ||
| T+123 days<br>(3 days) |
2
Specialized Adoption Agency.
3
District Child Protection Unit.
W.P. (C) No. 960 of 2021 Page 81 of 99
| [Reg 7(17) of Adoption<br>Regulation] | |||||
|---|---|---|---|---|---|
| UPLOAD OF CHILD STUDY REPORT & MEDICAL EXAMINATION | |||||
| REPORT | |||||
| T+71 days<br>(10 days) | The CSR4 and MER5<br>shall be prepared and<br>posted on the<br>Designated Portal.<br>[Reg 7(18) of CARA<br>Regulations] | T+73 days<br>(10 days) | The CSR and MER<br>shall be prepared<br>and posted on the<br>Designated Portal.<br>[Reg 6(15) of the<br>CARA Regulations] | ||
| T+133 days<br>(10 days) | |||||
| REFERRAL | |||||
| T+71 days<br>(No time<br>period<br>stipulated) | The child, subject to<br>availability, may be<br>referred to PAPs on the<br>basis of seniority on<br>the Designated Portal.<br>[Reg 11(2) of CARA<br>Regulations] | T+73 days<br>(No time<br>period<br>stipulated) | The child, subject<br>to availability, may<br>be referred to PAPs<br>on the basis of<br>seniority on the<br>Designated Portal.<br>[Reg 11(2) of CARA<br>Regulations] | ||
| T+133 days<br>(No time<br>period<br>stipulated) |
133. The substantial amount of time in the aforesaid timeline, in the
case of a surrendered child, is devoted to allowing the parents
or guardian to reconsider their decision to surrender the child.
Whereas, in the case of an orphaned or abandoned child, owing
4
Child Study Report.
5
Medical Examination Report.
W.P. (C) No. 960 of 2021 Page 82 of 99
to the age of the child, time has been devoted to making sincere
efforts to trace the biological parents or legal guardian of the
child.
134. We lay much emphasis on the fact that this timeline cannot be
compromised, having regard to the sensitive nature and the
serious legal consequences that follow once a child is declared
legally free for adoption. The time afforded to biological parents
to reconsider the decision of surrender, as well as the efforts
undertaken to trace the biological parents or legal guardians of
an orphaned or abandoned child, are indispensable safeguards.
These processes are bound to require time and must necessarily
be allowed to unfold with due care.
135. In this regard, the respondents have submitted that in order to
expedite the adoption process, district magistrates and
additional district magistrates have been conferred with the
power to issue adoption orders. We discourage this
understanding of the adoption process. The expedition cannot
be pursued at the cost of the essential safeguards that ensure
no child is separated from their parent or legal guardian without
consent or due process.
136. The conferment of such powers is intended to streamline
procedural bottlenecks and ensure timely administrative action.
This does not warrant the curtailment of the safeguards
embedded in the statutory scheme. The adoption framework is
designed not merely to facilitate placement of children but to
W.P. (C) No. 960 of 2021 Page 83 of 99
ensure that every stage of the process accords primacy to the
best interests of the child. Any attempt to compress or
abbreviate these procedures in the name of expedition would
undermine the safeguards that protect the rights of the child as
well as those of the biological and adoptive parents. Therefore,
the time taken in the process of declaring a child legally free for
adoption is not a procedural “formality” but a necessary
component of a careful and responsible adoption structure.
137. We shall now turn to the legal discussion concerning this issue.
In adjudging the validity of a provision, the existing conditions
in which the law is to be applied cannot be ignored. We say so
because such conditions bear a direct nexus with the object
sought to be achieved by the legislation. A statutory provision
cannot be examined in isolation or in the abstract, divorced from
the practical realities within which it is expected to operate.
138. In the aforesaid context, it is apposite to understand that law is
not unidimensional or myopic in its application. If a provision is
framed without due regard to the administrative conditions in
which it is to operate, the intention of the legislation would stand
frustrated. The law must be understood not merely through its
terminology, but also in terms of its ability to meaningfully
address the conditions for which it has been enacted.
139. It is well settled that the law cannot be merely symbolic or rather
illusory. A legislative provision, more particularly, one which is
beneficial in nature, must be capable of meaningful
W.P. (C) No. 960 of 2021 Page 84 of 99
implementation so that the class for whose benefit it has been
enacted is able to effectively avail the protection intended by the
legislature. If the structure of the provision or the circumstances
surrounding its operation make the benefit practically
unattainable, the law risks becoming a mere formality on paper
rather than an instrument of social welfare.
140. It would be worthwhile to refer to the observations made by this
Court in State of Kerala v . Unni , reported in (2007) 2 SCC
365 . The challenge to Rule (2) of the Kerala Abkari Shops
(Disposal in Auction) Rules, 2002, was on the ground of its
unworkability. In the factual scenario, the sample obtained from
the business of the respondent was found to contain ethyl
alcohol in excess of 9.5%. The respondents therein contended
that no mechanical equipment was available to accurately
measure the ethyl alcohol content in toddy. This Court,
accepting the respondent’s argument, held the provision to be
unworkable when put to application, and struck down the
impugned rule. The relevant observations read thus:-
“ 39. Workability of a statute vis-à-vis the question as to
whether it is vague or otherwise must also be
considered having regard to the question as to whether
it is at all practical.
40. We must state that where two interpretations are
possible, having regard to the workability or
unworkability of a statute, the one which leads to the
workability of the statute must be preferred to the
other, keeping in view the principle ut res magis valeat
quam pereat. (See State of T.N. v. M.K.
Kandaswami [(1975) 4 SCC 745 : 1975 SCC (Tax) 402]
.)
W.P. (C) No. 960 of 2021 Page 85 of 99
xxx
45. Here, no two interpretations are possible for
upholding the validity of statute. Applying the principle
of law as enunciated by this Court in the decisions
noticed hereinbefore, no interpretation would make the
statute workable or definite and thereafter, valid in
law.
xxx
50. A person may be held to be guilty even if the
contents of ethyl alcohol exceed 8.1% marginally. He
must, therefore, be in a position to know as to what
extent he can go and to what extent he cannot. The
matter cannot, thus, be left to an act of nature. A penal
provision must be definite. Unless the statutory
intention otherwise provides, existence of mens rea
must be read into a penal statute. It must be a
deliberate act and not an unintentional one, unless the
statute says so explicitly or by necessary implication.
The Act or the Rules do not say either. It is in that sense
vague or unreasonable.
51. Once, thus, it is found to be ex facie unreasonable
and unworkable, the Court would not hesitate to strike
down the said rule. We do so. ”
(Emphasis supplied)
141. In this context, by the time a child is declared legally free for
adoption, the child is unlikely to remain within the narrow age
threshold (three months) contemplated by the provision. The
inevitable consequence is that although the statute ostensibly
confers maternity benefit upon adoptive mothers, yet the benefit
remains largely inaccessible in practice.
142. This issue was highlighted in Temple of Healing v . Union of
India , W.P.(C) No. 1003/2021 , wherein the petitioner called
attention to the deficiencies in the process for adoption in the
W.P. (C) No. 960 of 2021 Page 86 of 99
country. The report submitted by the Central Adoption and
Research Agency indicated that PAPs wait between three to four
years in order to get a healthy and young child. The reason was
attributable to the mismatch in the number of registered PAPs
and children available for adoption. The Court observed that the
process of defining the legal status of the child is delayed on part
of the CWCs. We may again bring the observations of this Court
to the notice of the respondents. It reads thus:-
“ (b) Compilation of data on registration of all OAS
children of the district on CARINGS and monitoring of
CWCs for timely determination of legal status of
children. It is imperative for the States to ensure
registration of all OAS children in the district on the
CARINGS portal. States are required to nominate an
officer of a sufficiently senior level to monitor this
exercise. It has been observed while examining the
data on CARINGS as well as visits conducted from time
to time by CARA that the process of defining the legal
status of children is delayed on the part of CWCs. The
pending cases with CWCs beyond stipulated time limit
for declaring a child legally free for adoption (LFA) is
also one of the major concerns. There are a total
number of 761 cases in all States/UTs which are
pending with CWCs for more than four months for
declaring LFA children. CWCs are required to expedite
the legal status of all orphans, abandoned and
surrendered children irrespective of their age. Older
children can be benefited by the foster care adoption
module being operationalized by CARA. The necessary
data on pending applications for LFA children also
needs to be compiled .”
143. This Court should not remain oblivious to such ground realities.
When a law, more particularly a beneficial legislation, is framed
in a manner that prevents the intended beneficiaries from
actually receiving its benefits, it ceases to serve its social
W.P. (C) No. 960 of 2021 Page 87 of 99
purpose. A beneficial legislation must be interpreted and
structured in a manner that enables its benefits to reach the
masses for whom it is intended.
144. Thus, a provision which, owing to its design or surrounding
conditions, cannot be effectively applied may result in the law
becoming illusory in operation. The constitutional promise of
equality and social justice demands that beneficial measures are
not merely enacted, but are also capable of meaningful
realization in the lives of those whom they seek to protect.
145. At this stage, we deem it appropriate to observe that the
legislature, while enacting a statute, bears the responsibility of
ensuring that the law it enacts is capable of being implemented.
The duty of the law maker does not end with the mere
articulation of a right or benefit. The enforceability of that right
is equally important. Accessibility of law does not mean formal
existence, but the ability of individuals to avail the benefits.
E. Institutional invisibility of household and care work
146. This provides us with the segue to address yet another aspect of
rationale behind conferring maternity benefit upon adoptive
mothers irrespective of the age of the adopted child.
147. It is not an unknown phenomenon that women often sacrifice
earnings and career progression for childbirth and child care.
Care work for children includes attending to their daily needs,
bathing and feeding them, accompanying them for medical
W.P. (C) No. 960 of 2021 Page 88 of 99
visits, etc., and undertaking the preparation that these
responsibilities entail. There is no doubt that every member of a
household benefits from the care work within households, and
ordinarily, it is undertaken by women.
148. Such work of indispensable nature for the functioning of the
family is performed without any explicit remuneration. The care
provided within the home enables other members of the
household to participate productively at their workplace. The
economic significance of this care work, though frequently
overlooked, is considerable. Only when time is spent on
domestic and care responsibilities, the receivers are able to
sustain productive employment. Thus, the contribution of
women’s unpaid labour at home, is not merely a private or
domestic matter but forms an integral part of the broader
economy.
149. In this regard, we may refer to what is called the Wollstonecraft
Dilemma. It refers to the tension between recognizing women’s
role as caregivers and ensuring their equal participation in the
workforce. This dilemma reflects the challenge of reconciling two
competing expectations placed upon women. First , that they
perform the role of a caregiver. Secondly , that they participate
on equal terms with men.
150. This communicates that it would be unreasonable to treat
women identically to men without acknowledging the social
realities of the responsibilities to be undertaken at home. As a
W.P. (C) No. 960 of 2021 Page 89 of 99
result, it will perpetuate structural disadvantage. At the same
time, it would be unjust, if the law recognizes differences without
ensuring equality in opportunity. Thus, conferring maternity
benefit is a manner of acknowledging the realities of caregiving
while enabling women to remain integrated within the
workforce.
151. A study by the ILO indicate that employed women tend, on
average, to work for longer hours than employed men when both
paid employment and unpaid domestic work are taken into
6
account. This disparity in working hours highlights the
gendered nature of household responsibilities and clearly
reflects societal norms regarding domestic labour and care work.
Further, in the study, Valuation of Unpaid Household Activities
7
in India , the authors highlight the economic significance of
unpaid domestic and care work performed within households.
There is no doubt that such unpaid house and care work
contributes to the overall growth of the economy.
152. The aforesaid study reflects that this care work, though often
unaccounted for, is far from insignificant, rather, it represents
a foundational contribution to economic productivity. These
caregiving responsibilities do not change when a woman adopts
a child aged three months or above. On the contrary, they are
6
International Labour Organization, “Women at Work: Trends 2016” (2016).
7
Satyananda Sahoo, Kaustav K. Sarkar & Amit Kumar, “Valuation of Unpaid
Household Activities in India” 59(39) EPW 190 (2024).
W.P. (C) No. 960 of 2021 Page 90 of 99
heightened, in order to make the child comfortable and integrate
within the family.
153. As discussed in the foregoing paragraphs of this judgment that
the initial months following the arrival of a child, whether by
birth or adoption, require time, attention, and rearing
responsibilities to ensure the well-being of the child and the
establishment of a stable environment.
154. In such circumstances, the absence of adequate economic
protection or institutional support places an unreasonable
burden upon women. There is no gainsaying that it would be
unreasonable to expect a woman who has just welcomed a child
into her life and simultaneously discharges the demanding
responsibilities of caregiving at home to maintain the same level
of presence and efficiency at the workplace. The maternity
benefits are nothing but an expression of treatment grounded in
equity and substantive approach to equality.
F. Highlighting the importance and need for paternity leave
155. There exists a kind of injustice, although not deliberate, yet
based on assumptions so deeply rooted that they have ceased to
appear as injustice at all, and have come to be accepted as the
natural order of things in society. Society has historically
attributed caregiving and nurturing responsibilities almost
exclusively to mothers. While the role of a mother is undeniably
central to a child’s emotional, physical, and psychological
W.P. (C) No. 960 of 2021 Page 91 of 99
development, it would be incomplete and unjust to overlook the
equally significant role of a father.
156. Parenthood is not a solitary function performed by one parent
but rather a shared responsibility in which each parent
contributes to the child’s holistic development. Although the
father is present at the periphery of infancy, yet he is not present
in the intimate and irreplaceable way that society has always
presumed the mother must be. This acceptance of absence has
seldom been examined with the seriousness it deserves. As a
result, the cost is borne silently by children who grow up never
realizing what they lacked, by fathers who were constrained by
circumstances to remain distant. At the same time, by mothers
who were denied the companionship and support of their
partners in the early phase of caregiving.
157. The early months and years of a child’s life constitute a formative
period during which emotional bonds, attachment, and a sense
of security begin to take shape. During this stage, the presence
of a father contributes significantly to the child’s emotional and
psychological well-being. The essence of the matter is simple,
the presence of both parents during the early development of a
child is indispensable. What a father offers to a child in those
nascent days cannot be scheduled for a convenient time or
compensated for later.
158. In the aforesaid context, the absence of a father is rationalized
by the hope of making up for lost time through devoted
weekends. For the child, who needed to hear the voice and feel
W.P. (C) No. 960 of 2021 Page 92 of 99
the warmth of a father in those early moments, the absence is
not merely a matter of memory. It affects the foundation upon
which the child begins to build emotional security and
attachment. The absence of a father during the formative years
of a child’s life, particularly due to employment constraints,
deprives both the child and the parent of the opportunity to form
these early bonds.
159. We must note that proximity is not identical to presence. A
father who remains physically near yet is compelled by
professional obligations to remain disengaged from early
caregiving roles cannot truly participate in the formative
experiences of a child’s infancy. It is not unknown that fathers
have traditionally been perceived as providers, with their
responsibilities revolving around financial stability.
Consequently, as financial care does not resemble the visible,
everyday nurturing, it has often been undervalued as a basis for
recognizing the need for leave.
160. The other side of the same coin is the historical absence of a
father’s participation in everyday caregiving and shared
responsibility. In this context, the absence of paternity leave
produces two consequences. First , it reinforces gendered roles
in parenting. Secondly , even where a father is willing and
desirous of contributing, he is left without a meaningful
opportunity to do so. When fathers are afforded the opportunity
to take leave following the arrival of the child, they are able to
support mother and share family responsibilities. This support
W.P. (C) No. 960 of 2021 Page 93 of 99
extends to participating in the upbringing and caregiving of the
child, assisting with household responsibilities, and remaining
emotionally present during this demanding phase.
161. In such circumstances referred to above, a provision for
paternity leave serves an important purpose by enabling fathers
to participate meaningfully in the early stages of a child’s life
and development. It helps in dismantling gendered roles,
encourages fathers to take an active role in child care, fosters a
balanced understanding of parenting, and promotes gender
equality within family and workplace.
162. It also advances the best interests and welfare of the child, which
are most effectively served when both parents are enabled to
play meaningful and complementary roles in the child’s growth
and development. The reasons highlighted in the foregoing
paragraphs of this judgment for maternity leave remain similar
for paternity leave.
163. At present, Sections 43A and 43AA of the CCS (Leave) Rules,
respectively, grant a male government servant 15 days of
paternity leave for the birth of the child or for adoption. The
provisions read thus:-
“ 43-A. Paternity leave
(DOPT Notification No. 13026/1/99-Estt. (L), dated
18.04.2002)
(1) A male Government servant (including an
apprentice) with less than two surviving children, may
be granted Paternity Leave by an authority competent
to grant leave for a period of 15 days, during the
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confinement of his wife for childbirth, i.e., up to 15 days
before, or up to six months from the date of delivery of
the child.
(2) During such period of 15 days, he shall be paid
leave salary equal to the pay drawn immediately
before proceeding on leave.
(3) The paternity Leave may be combined with leave of
any other kind.
(4) The paternity leave shall not be debited against the
leave account.
(5) If Paternity Leave is not availed of within the period
specified insubrule (1), such leave shall be treated as
lapsed.
NOTE:- the Paternity Leave shall not normally be
refused under any circumstances.
43-AA. Paternity Leave for Child Adoption
(DOPT Notification No. 110 I2/l/2009-Estt. (L), dated
01.12.2009)
(1) A male Government servant (including an
apprentice) with less than two surviving children, on
valid adoption of a child below the age of one year, may
be granted Paternity Leave for a period of 15 days
within a period of six months from the date of valid
adoption.
(2) During such period of 15 days, he shall be paid
leave salary equal to the pay drawn immediately
before proceeding on leave.
(3) The Paternity Leave may be combined with leave of
any other kind.
(4) The Paternity Leave shall not be debited against the
leave account.
(5) If Paternity Leave is not availed of within the period
specified in sub-rule (1), such leave shall be treated as
lapsed.
NOTE 1.— The Paternity Leave shall not normally be
refused under any circumstances.
NOTE 2.— "Child" for the purpose of this rule will
include a child taken as ward by the Government
servant, under the Guardians and Wards Act, 1890 or
the personal law applicable to that Government
servant, provided such a ward lives with the
W.P. (C) No. 960 of 2021 Page 95 of 99
Government servant and is treated as a member of the
family and provided such Government servant has,
through a special will, conferred upon that ward the
same status as that of a natural born child.
(DOPT Notification No. 13026/5/2011-Estt. (L), dated
04.04.2012) ”
164. The aforesaid provision reflects that the concept of paternity
leave is not alien, but less recognized. We are observant that
certain efforts are being made towards recognizing the need for
such a provision. Recently, a private member Bill titled The
Paternity and Parental Benefit Bill, 2025 (Bill No. 82 of 2025),
was introduced, which seeks to grant eight weeks of paternity
leave. The Bill, inter alia , seeks to extend paternity leave to
adopting fathers.
165. Before we part, we would like to pen that a child who is born or
adopted does not know what the law has decided about presence
of the father, nor does the child understand how the law values
paternity leave. The child, in all likelihood, experiences the
presence or absence of closeness, and the depth or shallowness
of the bond, simply as the natural state of things between them.
It does not know that the slightest distance it feels is not
reflective of the care or affection that exists. The realization that
one of its parents arrived a little late to the story because the law
required him to be present at work is something the child may
never consciously know, yet the quiet cost of that absence is
later reflected in their relationship.
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V. CONCLUSION
166. A conspectus of our discussion in the aforesaid section is as
follows:-
a. The distinction drawn by sub-section (4) of Section 60 does
not have a rational nexus with the object of the 2020 Code.
The object of maternity benefit is not associated with the
process of childbirth but with the process of motherhood.
The purpose of maternity protection does not vary with the
manner in which the child is brought into the life of the
beneficiary mother. Insofar as the roles, responsibilities,
and caregiving obligations are concerned, women who
adopt a child aged three months or above are similarly
situated to women who adopt a child below the age of three
months.
b. The process of adjustment and integration within the
adoptive family, both for the parents as well as the child,
remains substantially the same irrespective of the age of
the child. The impugned classification overlooks the
significant emotional, psychological, and practical
adjustments required, of the adoptive parents and the
adopted child, more particularly, in cases involving
children with disabilities or single adoptive mothers.
c. The right of reproductive autonomy is not confined to the
biological act of giving birth. Adoption is an equal exercise
of the right to reproductive and decisional autonomy under
Article 21 of the Constitution.
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d. In matters affecting a child, paramount consideration
must be given to best interests of the child. This
consideration does not conclude with the completion of the
formalities of adoption or the handing over of the custody,
rather it continues throughout the period the child
remains a child, more particularly, the period during
which the child integrates into the adoptive family. The
true fulfilment of the child’s welfare lies in enabling the
child to meaningfully adjust, bond, and flourish within the
family environment.
e. When sub-section (4) of Section 60 of the 2020 Code is
examined through one another angle, the provision turns
out to be incapable of practical implementation, as it
cannot fully achieve the purpose for which it has been
enacted. With regard to the time required to declare a child
legally free for adoption, by the time such declaration is
made, the child is unlikely to be of less than three months
old. Thus, the age limit renders the provision illusory and
devoid of practical application.
167. For all the foregoing reasons, we have reached the conclusion
that Section 60(4) of the 2020 Code insofar it puts an age limit
of three months on the age of the adoptive child, for the adoptive
mothers to avail maternity benefit under the 2020 Code is
violative of Articles 14, and 21 of the Constitution respectively.
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168. Therefore, the sub-section (4) of Section 60 of the 2020 Code
should now be meaningfully read as:-
“( 4) A woman who legally adopts a child or a
commissioning mother shall be entitled to maternity
benefit for a period of twelve weeks from the date the
child is handed over to the adopting mother or the
commissioning mother, as the case may be. ”
169. In light of the aforesaid discussion on the need of paternity leave,
we urge the Union to come up with a provision recognizing
paternity leave as a social security benefit. We emphasize that
the duration of such leave must be determined in a manner that
is responsive to the needs of both the parent and the child.
170. In the result, the petition stands allowed in the aforesaid terms.
Pending application(s), if any, also stand disposed of.
…………………………..J.
(J.B. PARDIWALA)
.…………………………..J.
(R. MAHADEVAN)
th
17 March, 2026;
New Delhi.
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