Full Judgment Text
2025 INSC 781
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2526 OF 2025
(ARISING OUT OF SLP (CIVIL) No. 20178 OF 2022)
K. UMADEVI APPELLANT(S)
VERSUS
GOVERNMENT OF TAMIL NADU
& ORS. RESPONDENT(S)
J U D G M E N T
UJJAL BHUYAN, J.
This civil appeal by special leave takes exception to
the judgment and order dated 14.09.2022 passed by the
Division Bench of the High Court of Judicature at Madras (High
Court) in W.A. No. 1442 of 2022.
Signature Not Verified
Digitally signed by
KAVITA PAHUJA
Date: 2025.05.23
17:52:43 IST
Reason:
2. By the aforesaid judgment and order dated
14.09.2022 (impugned judgment), Division Bench set aside the
judgment and order dated 25.03.2022 passed by a learned
Single Judge of the High Court in W.P. No. 22075 of 2021 ( K.
Umadevi Vs. Government of Tamil Nadu and Others ) whereby
direction was issued to the State to sanction maternity leave to
the appellant. By reversing the aforesaid decision, Division
Bench held that appellant was not entitled to the benefit of
maternity leave as claimed by her.
3. Relevant facts may be briefly noted.
4. Appellant married A. Suresh in the year 2006. From
the said wedlock, two children were born: first one in 2007 and
the second one in 2011. She entered government service in
December, 2012 as English Teacher in Government Higher
Secondary School, P. Gollapatti, Dharmapuri District in the
State of Tamil Nadu. Marriage between the two was dissolved in
the year 2017. It is stated that the two children born out of the
said wedlock are in the custody of the former husband.
2
4.1. On 12.09.2018, appellant married M. Rajkumar. Due
to conceivement from her second marriage, appellant applied
for grant of maternity leave to the authorities for the period from
17.08.2021 to 13.05.2022 (nine months) which was inclusive of
both pre-and-post-natal periods.
4.2. The third respondent vide order dated 28.08.2021
rejected the prayer of the appellant. It was stated that as
per Fundamental Rule (FR) 101(a) which is applicable to state
government employees of Tamil Nadu, maternity leave is
available to women state government employees having less
than two surviving children. There is no provision for grant of
maternity leave for the third child on account of appellant’s re-
marriage.
4.3. Aggrieved by rejection of her request for grant of
maternity leave, appellant preferred a writ petition before the
High Court which was registered as W.P. No. 22075 of 2021. A
learned Single Judge of the High Court vide the judgment and
order dated 25.03.2022 held that appellant was entitled to grant
of maternity benefit. Therefore, rejection of her claim for grant
3
of such benefit was illegal. As such, order dated 28.08.2021 was
set aside. Respondents were directed to sanction maternity
leave to the appellant as admissible in terms of the latest
G.O.Ms. No. 84 of the Personnel and Administrative Reforms
(FR-III) Department dated 23.08.2021. Consequential decision
was directed to be taken within a period of two weeks from the
date of receipt of a copy of the said judgment. Writ petition was
accordingly allowed.
4.4. Government of Tamil Nadu and its officers filed intra-
court appeal being W.A. No. 1442 of 2022. A Division Bench of
the High Court vide the impugned judgment and order dated
14.09.2022 found the judgment of the learned Single Judge to
be unsustainable. Division Bench held that the appellant was
not entitled to maternity relief as claimed by her. Accordingly,
the judgment and order of the learned Single Judge dated
25.03.2022 has been set aside. Consequently, the writ appeal
has been allowed.
5. This came to be assailed before this Court in the
related special leave petition. Notice was issued by this Court
4
on 28.11.2022. In the hearing held on 11.02.2025, leave was
granted.
6. Learned counsel for the appellant submits that the
Division Bench was not at all justified in reversing the decision
of the learned Single Judge. Division Bench erred in holding
that maternity benefit could not be provided to the appellant.
Prior to her entry into service, she had begotten two children
from her first marriage but their custody is with the father.
Conceivement of a child out of her re-marriage which, in fact, is
her first child from the present wedlock cannot be treated as
her third child, thus, disentitling her from availing the benefit
of maternity leave.
6.1. Learned counsel submits that the issue raised in this
case is squarely covered by the decision of this Court in Deepika
1
Singh Vs. Central Administrative Tribunal . However, the
Division Bench misdirected itself in observing that the said
decision is not applicable to the facts of this case; rather
1
(2023) 13 SCC 681
5
supports the case of the respondents. He submits that the
decision of this Court in Deepika Singh (supra) is squarely
applicable to the facts of this case. Division Bench of the High
Court is bound by the dictum of law laid down in Deepika Singh
(supra). To that extent, impugned judgment and order suffers
from perversity.
6.2. Learned counsel further submits that view of the
Division Bench that grant of maternity leave is not a
fundamental right is totally unsustainable. Right to have
maternity leave is a facet of reproductive right of a woman which
is traceable to Article 21 of the Constitution of India, he
submits.
6.3. He further submits that though the Maternity Benefit
Act, 1961 may not be directly applicable to the state government
employees, nonetheless for the purpose of adopting an
approach which would further the legislative intent, certainly
guidance can be derived from the provisions of the Maternity
Benefit Act, 1961 (referred to hereinafter as the ‘Maternity
Benefit Act’).
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6.4. In any view of the matter, he submits that view taken
by the Division Bench cannot be sustained. Learned Single
Judge was justified in holding that appellant is entitled to
maternity leave. Therefore, the impugned judgment should be
set aside and direction be issued to the respondents to grant
maternity leave to the appellant or regularize any leave taken by
the appellant relatable to her pregnancy as maternity leave of
the appellant.
7. Per contra , learned counsel for the respondents
submits that the entire object of maternity benefit is to protect
the dignity of motherhood by providing complete care to a
woman employee and her children when she is unable to
perform her duty on account of her pregnancy. By extending
such benefit, the State has made an attempt to provide the
women employees with a level playing field.
7.1. He, however, submits that the said policy is subject
to fiscal responsibility and human resources management. Any
deviation from the established policy of not extending the
benefit of maternity leave to women employees having more
7
than two children would create precedents that could
potentially overwhelm the exchequer and impact administrative
efficacy. Even in Deepika Singh (supra), this Court highlighted
that statutory rights and service conditions must align.
Therefore, personal circumstances cannot override established
policy, especially where fiscal implications are significant.
7.2. He also submits that it is the policy of the State to
espouse the cause of small family which is in sync with the
policy of Government of India on population control. If the
reliefs sought for by the appellant is granted, it would amount
to incentivizing breach of population control norms and may
have severe and adverse impact on government’s policy of
managing small family norms as a population control measure.
7.3. Learned counsel has referred to FR 101(a) and
submits that the same bars grant of maternity benefit beyond
the second child. Permanent married women government
servants and non-permanent married women government
servants may be granted maternity leave with less than two
surviving children or with two surviving children born as twins
8
in the first delivery. Insofar the present case is concerned,
appellant already has two children from her first marriage.
Therefore, she is not entitled to maternity benefit for the third
child. That apart, provisions of the Maternity Benefit Act are
not applicable to state government employees like the appellant.
However, benefits extended to government employees of Tamil
Nadu as social welfare measures are more beneficial than under
the Maternity Benefit Act.
7.4. Learned counsel submits that appeal of the appellant
is without any merit and, therefore, the same is liable to be
dismissed.
8. We have considered the rival submissions of the
learned counsel representing the parties.
9. Let us first deal with the order dated 28.08.2021
passed by the third respondent under the heading: Proceeding
of Dharmapuri District Chief Educational Officer. By the
aforesaid order, request of the appellant for maternity leave was
rejected on the ground that there is no provision in the Tamil
9
Nadu Fundamental Rules for grant of maternity leave for third
child through re-marriage. Order dated 28.08.2021 reads thus:
On the above subject matter, the letter in the
reference cited was received on 18.08.2021 in this office.
Smt. K. Umadevi had two children by her first marriage.
After getting divorced for personal reason, she remarried
and through remarriage she has now applied for
maternity leave for the third child from 17.08.2021.
Since as per Rule 101 (a) of the Tamil Nadu
Fundamental Rules, maternity leave can be granted to a
woman government servant with less than two living
children only, the request of the individual to sanction
maternity leave to her third child may be rejected by
informing that there is no provision in the Tamil Nadu
Fundamental rules for grant of maternity leave for third
child through remarriage.
10. When this was challenged before the High Court,
learned Single Judge referred to various case laws and also
relied upon the Maternity Benefit Act and held that provisions
of the Maternity Benefit Act have overriding effect on any other
law inconsistent therewith. It was held that the rule providing
cap on the number of children for entitlement of maternity
benefit is repugnant to the Maternity Benefit Act which is a
10
central enactment. Further, two surviving children must mean
children in lawful custody of the mother. Appellant was not
having the custody of children born from the first wedlock. A
semantic construct of the expression ‘having surviving children’
must mean that the woman government employee seeking
maternity benefit should have custody of the children. The
thrust should be on grant of the benefit by adopting a liberal
interpretation. Learned Single Judge also noted that the State
Government had issued G.O.Ms. No. 84 dated 23.08.2021
enhancing maternity leave from 9 months to 12 months
underlying the importance of maternity leave. Therefore,
learned Single Judge concluded that rejection of the claim of the
appellant for maternity leave was wholly unjustified. Vide the
judgment and order of the learned Single Judge dated
25.03.2022, order dated 28.08.2021 was set aside.
Respondents were directed to sanction maternity leave to the
appellant for the period from 11.10.2021 to 10.10.2022 as
admissible in terms of the latest G.O.Ms. No. 84 dated
23.08.2021.
11
11. When the aforesaid judgment and order of the
learned Single Judge was assailed in intra-court appeal,
Division Bench noted that insofar policy of the State is
concerned it restricts benefit of maternity leave to two children.
Therefore, appellant was not entitled to benefit of maternity
leave for the third child. Grant of maternity leave is not a
fundamental right. It is either a statutory right or a right which
flows from the conditions of service. Insofar the decision of this
Court in Deepika Singh (supra) is concerned, Division Bench
observed that the said decision supports the case of the State,
particularly paragraph 17 thereof. In the circumstances,
Division Bench vide the impugned judgment held that appellant
was not entitled to the relief as claimed by her. Consequently,
while allowing the writ appeal, judgment and order of the
learned Single Judge has been set aside.
12. We need to examine the correctness or otherwise of
the decision of the Division Bench in the light of constitutional
and statutory framework as well as in the backdrop of
international developments.
12
13. Article 21 of the Constitution of India though at first
blush appears to be a colourless article, it is a potent provision
pregnant with wide width and scope having received extensive
and liberal construction at the hands of this Court. Article 21
reads thus:
21. Protection of life and personal liberty. – No person
shall be deprived of his life or personal liberty except
according to procedure established by law.
13.1. By judicial interpretation, it has been held that life
under Article 21 means life in its fullest sense; all that which
makes life more meaningful, worth living like a human being.
Right to life includes all the finer graces of human civilization,
thus rendering this fundamental right a repository of various
human rights. Right to life also includes the right to health.
Right to live with human dignity and the right to privacy are now
acknowledged facets of Article 21.
14. Article 42 of the Constitution of India which is one of
the directive principles of State policy mandates that the State
13
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.
15. 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
organized people with one another.
16. We may now refer to FR 101(a) as applicable to the
State of Tamil Nadu. For ready reference, the same is extracted
hereunder:
Rule 101 (a) - maternity leave to female Government
servants.
Instructions under Rule 101 (a) – Maternity leave.
1. (i) A competent authority may grant maternity
leave on full pay to permanent married women
Government servants and to non-permanent married
women Government servants, who are appointed on
regular capacity, for a period not exceeding 365 days,
14
which may spread over from the pre-confinement rest to
post confinement recuperation at the option of the
Government servant. Non-permanent married women
Government servants, who are appointed on regular
capacity and join duty after delivery shall also be granted
maternity leave for the remaining period of 365 days after
deducting the number of days from the date of delivery to
the date of joining in Government service (both days
inclusive) for the post confinement recuperation.
(ii) Non-permanent married women Government
servants, who are appointed under the emergency
provisions of the relevant service rules should take for
maternity purposes, the earned leave for which they may
be eligible. If, however, such a Government servant is not
eligible for earned leave or if the leave to her credit is less
than 365 days, maternity leave may be granted for a
period not exceeding 365 days or for the period that falls
short of 365 days, as the case may be. Non-permanent
married women Government servants employed under
the emergency provisions should have completed one
year of continuous service including leave periods, if any,
to become eligible for the grant of maternity leave.
Provided that the maternity leave referred in (i) or
(ii) above shall be granted to a married woman
Government servant with less than two surviving
children.
15
Provided further that in the case of a woman
Government servant with two surviving children born as
twins in the first delivery, maternity leave shall be
granted for one more delivery.
17. As per the first proviso to clause (ii) of FR 101(a),
maternity leave referred to clauses (i) or (ii) shall be granted to
a married woman Government servant with less than two
surviving children. The second proviso says that in the case of
a woman Government servant with two surviving children born
as twins in the first delivery, maternity leave shall be granted
for one more delivery.
18. Though provisions of the Maternity Benefit Act per se
are not applicable to the State Government employees,
nonetheless, we may make a reference to certain relevant
provisions thereof for useful guidance. Section 5 of the
Maternity Benefit Act is as under:
5. Right to payment of maternity benefit. —(1) Subject
to the provisions of this Act, 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
16
immediately preceding the day of her delivery, the actual
day of her delivery and any period immediately following
that day.
Explanation.—For the purpose 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, the minimum rate of wage fixed or
revised under the Minimum Wages Act, 1948 (11 of 1948),
or ten rupees, whichever is the highest.
(2) No woman shall be entitled to maternity benefit unless
she has actually worked in an establishment of the
employer from whom she claims maternity benefit, for a
period of not less than eighty days in the twelve months
immediately preceding the date of her expected delivery:
Provided that the qualifying period of eighty days
aforesaid shall not apply to a woman who has immigrated
into the State of Assam and was pregnant at the time of
the immigration.
Explanation.—For the purpose of calculating under
this sub-section the days on which a woman has actually
worked in the establishment, the days for which she has
been laid off or was on holidays declared under any law for
the time being in force to be holidays with wages, during
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the period of twelve months immediately preceding the
date of her expected delivery shall be taken into account.
(3) The maximum period for which any woman shall be
entitled to maternity benefit shall be twenty-six weeks of
which not more than eight weeks shall precede the date of
her expected delivery :
Provided that the maximum period entitled to
maternity benefit by a woman having two or more than two
surviving children shall be twelve weeks of which not more
than six weeks shall precede the date of her expected
delivery :
Provided further that where a woman dies during this
period, the maternity benefit shall be payable only for the
days up to and including the day of her death:
Provided also that where a woman, having been
delivered of a child, dies during her delivery or during the
period immediately following the date of her delivery, for
which she is entitled for the maternity benefit, leaving
behind in either case the child, the employer shall be liable
for the maternity benefit for that entire period but if the
child also dies during the said period, then, for the days
up to and including the date of the death of the child.
(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
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date the child is handed over to the adopting mother or the
commissioning mother, as the case may be.
(5) In case where the nature of work assigned to a woman
is of such nature that she may work from home, the
employer may allow her to do so after availing of the
maternity benefit for such period and on such conditions
as the employer and the woman may mutually agree.
19. A careful perusal of the above provision would reveal
that grant of maternity benefit is per se not denied to a woman
employee having more than two children. Following amendment
in the year 2017, a restriction has been introduced in Section 5
by inserting a proviso under sub-section (3) as to the
entitlement of the period of maternity leave. A woman employee
having less than two surviving children is entitled to a
maximum period of benefit i.e. 26 weeks and for a woman
employee having two or more than two surviving children, the
benefit is restricted to 12 weeks. Thus, there is no ceiling or cap
on the number of children to claim maternity benefit. Only thing
is that in case of a woman employee having two or more than
two surviving children seeking maternity leave, period of the
19
benefit is reduced: from a maximum period of 26 weeks to a
maximum of 12 weeks.
20. Section 27 of the Maternity Benefit Act is also
relevant. It deals with effect of laws and agreements
inconsistent with the Maternity Benefit Act and declares that
provisions of the Maternity Benefit Act shall have effect
notwithstanding anything inconsistent therewith contained in
any other law or in terms of any award, agreement or contract
of service, whether made before or after the coming into force of
the Maternity Benefit Act.
21. The objective of maternity leave has been expounded
by this Court in the case of B. Shah Vs. Presiding Officer, Labour
2
Court, Coimbatore . This Court observed that maternity leave
legislation is intended to achieve the object of doing social
justice to women workers. It enables a woman worker not only
to subsist but also to make up her dissipated energy, nurse her
2
AIR 1978 SC 12
20
child, preserve her efficiency as a worker and maintain the level
of her previous efficiency and output.
22. We may now deal with relevant provisions contained
in international treaties and conventions dealing with maternity
benefits.
23. Universal Declaration of Human Rights was adopted
by the United Nations in the year 1948. Article 25 thereof has
got two sub-articles. Sub-article (1) says that everyone has the
right to a standard of living adequate for the health and well-
being of himself and of his family. This includes food, clothing,
housing, medical care etc. However, Article 25(2) is relevant
which is as under:
2. Motherhood and childhood are entitled to special care
and assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection.
23.1. Thus, Article 25(2) of the Universal Declaration of
Human Rights recognizes that motherhood and childhood are
entitled to special care and assistance. This principle
21
acknowledges State intervention and support for maternity
related entitlements.
24. International Covenant on Economic, Social and
Cultural Rights was adopted by the General Assembly of the
th
United Nations on 16 December, 1966. India ratified the said
covenant in the year 1979. Article 10(2) recognizes that special
protection should be accorded to mothers for a reasonable
period before and after childbirth. During such period working
mothers should be accorded paid leave or leave with adequate
social security benefits. Under Article 12 all the States who are
signatories to the aforesaid covenant acknowledged the steps to
be taken to achieve the full realization of the right to enjoy the
highest attainable standard of physical and mental health. This
would include provisions for the reduction of the stillbirth rate
and of infant mortality and for the healthy development of the
child.
25. The Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) was held in 1979
under the aegis of the United Nations. As a matter of fact,
22
CEDAW was adopted by the United Nations General Assembly
th
on 18 December, 1979. This convention was the culmination
of more than 30 years of work by the United Nations
Commission on the Status of Women, established in the year
1946, monitoring the situation of women around the world and
to promote women’s rights. Thrust of CEDAW is maximum
participation of women on equal terms with men in all fields of
life to ensure full and complete development of a country.
CEDAW is the most comprehensive international convention
focused on eliminating discrimination against women. India
ratified CEDAW in 1993.
25.1. Article 11 emphasizes that appropriate measures
should be taken by all nations to eliminate discrimination
against women in the field of employment. Article 11(2) says
that in order to prevent discrimination against women on the
grounds of marriage or maternity and to ensure their effective
right to work, the States shall take appropriate measures. As
per clause (b), signatory States are under an obligation to
introduce maternity leave with pay or with comparable social
23
benefits without loss of former employment, seniority or social
allowances. Article 12(1) obligates States to take all appropriate
measures to eliminate discrimination against women in the field
of healthcare including access to healthcare services
particularly those related to family planning. On the other hand,
Article 12(2) says that notwithstanding the provisions of Article
12(1), signatory States shall ensure to women appropriate
services in connection with pregnancy, confinement and the
post-natal period, granting free services where necessary, as
well as adequate nutrition during pregnancy and lactation.
25.2. Article 16(1)(e) affirms the right of a woman to decide
freely and responsibly on the number and spacing of children
and to have access to the information, education and means to
do so. Article 16(1)(e) reads thus:
Article 16
1. States Parties shall take all appropriate
measures to eliminate discrimination against women in
all matters relating to marriage and family relations and
in particular shall ensure, on a basis of equality of men
and women:
24
(e) The same rights to decide freely and responsibly on
the number and spacing of their children and to have
access to the information, education and means to enable
them to exercise these rights.
th
26. In its 20 session held in 1999, CEDAW adopted
several recommendations. General recommendation No.24
pertains to women and health. Such recommendation
emphasized on the need to ensure access to adequate
healthcare facilities particularly in respect of family planning,
protection of women’s health and safety in working conditions,
including safeguarding of the reproductive function, special
protection from harmful types of work during pregnancy and
with the provision for paid maternity leave. It was also
emphasized that women should have the same rights as men to
decide freely and responsibly on the number and spacing of
their children.
th
27. A Maternity Protection Convention was held on 30
May, 2000 at Geneva under the aegis of the International
25
Labour Organization. General Conference of the International
Labour Organization adopted the proposals of the said
th
Convention on 15 June, 2000. International labour standards
have long recognized maternity protection as essential for
promoting workplace equality and safeguarding maternal and
child health. This Convention applies to all employed women
including those in atypical forms of dependent work. Article 4
of this convention deals with maternity leave. As per clause (1),
a woman to whom the said convention applied shall be entitled
to a period of maternity leave of not less than 14 weeks. As per
clause (4), maternity leave shall include a period of 6 weeks
compulsory leave after childbirth for the protection of the health
of the mother and that of the child. Clause (5) clarifies that the
prenatal portion of maternity leave shall be extended by any
period elapsing between the presumed date of childbirth and
the actual date of childbirth, without reduction in any
compulsory portion of postnatal leave.
27.1. Under Article 8(1), it shall be unlawful for an
employer to terminate the employment of a woman during her
26
pregnancy. As per clause (2), a woman is guaranteed the right
to return to the same position or an equivalent position paid at
the same rate at the end of her maternity leave.
28. Thus, as can be seen from the above, through various
international conventions, the world community has recognized
the broad spectrum of reproductive rights which includes
maternity benefits. Maternity leave is integral to maternity
benefits. Reproductive rights are now recognized as part of
several intersecting domains of international human rights law
viz. the right to health, right to privacy, right to equality and
non-discrimination and the right to dignity.
29. Such international developments had its impact on
3
Indian law. In Suchita Srivastava Vs. Chandigarh Administration ,
a three-Judge Bench of this Court in the context of the Medical
Termination of Pregnancy Act, 1971 acknowledged the right of a
woman to make reproductive choices and held that such a right
is a facet of Article 21 of the Constitution. This Court held thus:
3
(2009) 9 SCC 1
27
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 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.
4
30. This Court in Devika Biswas Vs. Union of India
observed that the need to respect and protect reproductive
rights and reproductive health of a person has been recognized.
Reproductive right is an aspect of personal liberty under Article
21 of the Constitution. This decision was rendered in the
4
(2016) 10 SCC 726
28
backdrop of the sterlisation campaign carried out by the State.
In Devika Biswas (supra), this court observed as under:
106. The manner in which sterilisation procedures have
reportedly been carried out endanger two important
components of the right to life under Article 21 of the
Constitution—the right to health and the reproductive
rights of a person.
109. That the right to health is an integral part of the
right to life does not need any repetition.
110. Over time, there has been recognition of the need to
respect and protect the reproductive rights and
reproductive health of a person. Reproductive health has
been defined as “the capability to reproduce and the
freedom to make informed, free and responsible
decisions. It also includes access to a range of
reproductive health information, goods, facilities and
services to enable individuals to make informed, free and
responsible decisions about their reproductive behaviour”.
The Committee on Economic, Social and Cultural Rights
in
General Comment No. 22 on the Right to Sexual and
Reproductive Health under Article 12 of the International
Covenant on Economic, Social and Cultural Rights
observed that “The right to sexual and reproductive
29
health is an integral part of the right of everyone to the
highest attainable physical and mental health.”
111. This Court recognised reproductive rights as an
aspect of personal liberty under Article 21 of the
Constitution in Suchita Srivastava v. Chandigarh Admn.
The freedom to exercise these reproductive rights would
include the right to make a choice regarding sterilisation
on the basis of informed consent and free from any form
of coercion.
31. Elaborating on the contours of reproductive rights,
this Court in X Vs. Principal Secretary, Health and Family
5
Welfare Department, Govt. of NCT of Delhi observed that the
ambit of reproductive rights is not restricted to the right of
women to have or not to 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 health. This Court observed that although human
dignity inheres in every individual, it is susceptible to violation
by external conditions and treatment imposed by the State. The
5
(2023) 9 SCC 433
30
right of every woman to make reproductive choices without
undue interference from the State is central to the idea of
human dignity. Deprivation of access to reproductive healthcare
or emotional and physical well-being also injures the dignity of
women. This Court referred to Article 51 of the Constitution
which urges the State to foster respect for international law and
treaty obligations. Relevant extract of the said decision reads
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 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.
31
32. In a recent decision, Delhi High Court in
6
Commissioner of Police Vs. Raveena Yadav explained the
purpose of maternity benefit. It is to ensure that a working lady
may overcome the state of motherhood honourably, peaceably
and undeterred by the fear of being victimized for forced
absence from work during pre and post natal periods. Women
now constituting a sizable portion of the work force in our
country, must be treated with honour and dignity at places
where they work to earn their livelihood. The High Court went
on to explain the impact of pregnancy on the physiological and
psychological state of a woman employee undergoing
pregnancy. It is not just motherhood but also childhood that
require special attention. Health issues of both mother as well
as that of the child are to be kept in consideration while
providing maternity leave. Concept of maternity leave is a
matter of not just fair play and social justice but is also a
constitutional guarantee to the women employees of this
country towards fulfillment whereof the State is bound to act.
6
MANU/DE/4823/2024
32
33. In Deepika Singh (supra), appellant at the material
time was working as a nursing officer in the Post Graduate
Institute of Medical Education and Research, Chandigarh
(PGIMER). Her spouse had two children from his first marriage.
After his first wife passed away he married the appellant. In
official record she declared the two children of her spouse from
the first marriage as her children. On 04.06.2019 she had her
first biological child from her marriage. She applied for
maternity leave in terms of Rule 43 of the Central Services
(Leave) Rules, 1972 (‘1972 Rules’ hereinafter) which rules are
applicable to PGIMER. Request of the appellant for grant of
maternity leave was rejected on the ground that she had two
surviving children and had availed of child care leave earlier for
the two children born from the first marriage of her spouse. Her
first biological child was considered as the third child. Therefore
her request for grant of maternity leave was found to be
inadmissible in terms of the 1972 Rules.
33.1. Appellant challenged the said decision before the
Central Administrative Tribunal, Chandigarh Bench (Tribunal).
33
However, her original application was dismissed by the
Tribunal. When the appellant moved the High Court calling into
question the decision of the Tribunal, High Court also dismissed
the same on the ground that there was no perversity or illegality
in the judgment of the Tribunal.
33.2. Thereafter, the matter travelled to this Court. This
Court referred to Rule 43 of the 1972 Rules which deals with
maternity leave. As per Rule 43(1), only a female Government
servant with less than two surviving children may be granted
maternity leave. This Court opined that provisions of Rule 43(1)
must be imbued with a purposive construction. Since it is a
beneficial legislation, it has to be construed with a purpose
oriented approach and must receive a liberal construction to
promote its objects. The courts must bridge the gap between
law and society through the use of purposive interpretation.
Though this Court acknowledged that the Maternity Benefit Act
has no application to PGIMER as an establishment, yet for the
purpose of adopting an approach which furthers legislative
policy, referred to the provisions of the Maternity Benefit Act to
34
derive some guidance therefrom. After an exhaustive analysis of
Section 5 of the Maternity Benefit Act, this Court observed that
the said Act was enacted to secure women’s right to maternity
leave and to afford women with as much flexibility as possible
to live an autonomous life, both as a mother and as a worker.
Thereafter, this Court referred to the various international
treaties and conventions.
33.3. In the facts of that case, this Court observed that
spouse of the appellant had a prior marriage which had ended
as a result of the death of his wife after which the appellant
married him. However, what is relevant and important is the
following declaration of this Court:
24. …….The fact that the appellant’s spouse had
two biological children from his first marriage would not
impinge upon the entitlement of the appellant to avail
maternity leave for her sole biological child……
33.4. Thus, this Court was categorical in declaring that the
factum of appellant’s spouse having two biological children from
his first marriage would not impinge upon the entitlement of the
appellant to avail maternity leave for her sole biological child.
35
Grant of child care leave to the appellant for the two children of
her spouse from his previous marriage cannot be used to
disentitle her to maternity leave under Rule 43 of the 1972
Rules. In the context of employment, child birth has to be
construed as a natural incident of life and, hence, provisions for
maternity leave must be construed in that perspective.
Observing that when courts are confronted with such
situations, they would do well to attempt to give effect to the
purpose of the law in question rather than to prevent its
application.
34. Insofar the present case is concerned it is true that
appellant has two biological children out of her first wedlock.
But that was before entry into her service. Post entry into
service and from her subsisting marriage, this is her first child.
It has come on record that the two children out of her first
wedlock are not residing with her but with their father, who is
having their custody.
35. Policy of the State to arrest population growth by
resorting to various population control measures is certainly a
36
laudable objective. So is the objective of granting maternity
benefit to women employees. The object of having two child
norm as part of the measures to control population growth in
the country and the object of providing maternity benefit to
women employees including maternity leave in circumstances
such as in the present case are not mutually exclusive. The two
must be harmonized in a purposive and rationale manner to
achieve the social objective.
36. In the circumstances, we are unable to agree with the
view taken by the Division Bench of the High Court. Though
learned Single Judge had granted the relief to the appellant, we
are also unable to persuade ourselves to the line of reasoning of
the learned Single Judge.
37. We accordingly set aside the judgment and order of
the Division Bench of the High Court dated 14.09.2022 and
declare that appellant shall be granted maternity leave under
FR 101(a). Maternity benefits which are admissible to the
appellant shall be released to her within a period of two months
from today.
37
38. Appeal is accordingly allowed. However, there shall
be no order as to cost.
……………………………J.
[ABHAY S. OKA]
……………………………J.
[UJJAL BHUYAN]
NEW DELHI;
MAY 23, 2025.
38
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2526 OF 2025
(ARISING OUT OF SLP (CIVIL) No. 20178 OF 2022)
K. UMADEVI APPELLANT(S)
VERSUS
GOVERNMENT OF TAMIL NADU
& ORS. RESPONDENT(S)
J U D G M E N T
UJJAL BHUYAN, J.
This civil appeal by special leave takes exception to
the judgment and order dated 14.09.2022 passed by the
Division Bench of the High Court of Judicature at Madras (High
Court) in W.A. No. 1442 of 2022.
Signature Not Verified
Digitally signed by
KAVITA PAHUJA
Date: 2025.05.23
17:52:43 IST
Reason:
2. By the aforesaid judgment and order dated
14.09.2022 (impugned judgment), Division Bench set aside the
judgment and order dated 25.03.2022 passed by a learned
Single Judge of the High Court in W.P. No. 22075 of 2021 ( K.
Umadevi Vs. Government of Tamil Nadu and Others ) whereby
direction was issued to the State to sanction maternity leave to
the appellant. By reversing the aforesaid decision, Division
Bench held that appellant was not entitled to the benefit of
maternity leave as claimed by her.
3. Relevant facts may be briefly noted.
4. Appellant married A. Suresh in the year 2006. From
the said wedlock, two children were born: first one in 2007 and
the second one in 2011. She entered government service in
December, 2012 as English Teacher in Government Higher
Secondary School, P. Gollapatti, Dharmapuri District in the
State of Tamil Nadu. Marriage between the two was dissolved in
the year 2017. It is stated that the two children born out of the
said wedlock are in the custody of the former husband.
2
4.1. On 12.09.2018, appellant married M. Rajkumar. Due
to conceivement from her second marriage, appellant applied
for grant of maternity leave to the authorities for the period from
17.08.2021 to 13.05.2022 (nine months) which was inclusive of
both pre-and-post-natal periods.
4.2. The third respondent vide order dated 28.08.2021
rejected the prayer of the appellant. It was stated that as
per Fundamental Rule (FR) 101(a) which is applicable to state
government employees of Tamil Nadu, maternity leave is
available to women state government employees having less
than two surviving children. There is no provision for grant of
maternity leave for the third child on account of appellant’s re-
marriage.
4.3. Aggrieved by rejection of her request for grant of
maternity leave, appellant preferred a writ petition before the
High Court which was registered as W.P. No. 22075 of 2021. A
learned Single Judge of the High Court vide the judgment and
order dated 25.03.2022 held that appellant was entitled to grant
of maternity benefit. Therefore, rejection of her claim for grant
3
of such benefit was illegal. As such, order dated 28.08.2021 was
set aside. Respondents were directed to sanction maternity
leave to the appellant as admissible in terms of the latest
G.O.Ms. No. 84 of the Personnel and Administrative Reforms
(FR-III) Department dated 23.08.2021. Consequential decision
was directed to be taken within a period of two weeks from the
date of receipt of a copy of the said judgment. Writ petition was
accordingly allowed.
4.4. Government of Tamil Nadu and its officers filed intra-
court appeal being W.A. No. 1442 of 2022. A Division Bench of
the High Court vide the impugned judgment and order dated
14.09.2022 found the judgment of the learned Single Judge to
be unsustainable. Division Bench held that the appellant was
not entitled to maternity relief as claimed by her. Accordingly,
the judgment and order of the learned Single Judge dated
25.03.2022 has been set aside. Consequently, the writ appeal
has been allowed.
5. This came to be assailed before this Court in the
related special leave petition. Notice was issued by this Court
4
on 28.11.2022. In the hearing held on 11.02.2025, leave was
granted.
6. Learned counsel for the appellant submits that the
Division Bench was not at all justified in reversing the decision
of the learned Single Judge. Division Bench erred in holding
that maternity benefit could not be provided to the appellant.
Prior to her entry into service, she had begotten two children
from her first marriage but their custody is with the father.
Conceivement of a child out of her re-marriage which, in fact, is
her first child from the present wedlock cannot be treated as
her third child, thus, disentitling her from availing the benefit
of maternity leave.
6.1. Learned counsel submits that the issue raised in this
case is squarely covered by the decision of this Court in Deepika
1
Singh Vs. Central Administrative Tribunal . However, the
Division Bench misdirected itself in observing that the said
decision is not applicable to the facts of this case; rather
1
(2023) 13 SCC 681
5
supports the case of the respondents. He submits that the
decision of this Court in Deepika Singh (supra) is squarely
applicable to the facts of this case. Division Bench of the High
Court is bound by the dictum of law laid down in Deepika Singh
(supra). To that extent, impugned judgment and order suffers
from perversity.
6.2. Learned counsel further submits that view of the
Division Bench that grant of maternity leave is not a
fundamental right is totally unsustainable. Right to have
maternity leave is a facet of reproductive right of a woman which
is traceable to Article 21 of the Constitution of India, he
submits.
6.3. He further submits that though the Maternity Benefit
Act, 1961 may not be directly applicable to the state government
employees, nonetheless for the purpose of adopting an
approach which would further the legislative intent, certainly
guidance can be derived from the provisions of the Maternity
Benefit Act, 1961 (referred to hereinafter as the ‘Maternity
Benefit Act’).
6
6.4. In any view of the matter, he submits that view taken
by the Division Bench cannot be sustained. Learned Single
Judge was justified in holding that appellant is entitled to
maternity leave. Therefore, the impugned judgment should be
set aside and direction be issued to the respondents to grant
maternity leave to the appellant or regularize any leave taken by
the appellant relatable to her pregnancy as maternity leave of
the appellant.
7. Per contra , learned counsel for the respondents
submits that the entire object of maternity benefit is to protect
the dignity of motherhood by providing complete care to a
woman employee and her children when she is unable to
perform her duty on account of her pregnancy. By extending
such benefit, the State has made an attempt to provide the
women employees with a level playing field.
7.1. He, however, submits that the said policy is subject
to fiscal responsibility and human resources management. Any
deviation from the established policy of not extending the
benefit of maternity leave to women employees having more
7
than two children would create precedents that could
potentially overwhelm the exchequer and impact administrative
efficacy. Even in Deepika Singh (supra), this Court highlighted
that statutory rights and service conditions must align.
Therefore, personal circumstances cannot override established
policy, especially where fiscal implications are significant.
7.2. He also submits that it is the policy of the State to
espouse the cause of small family which is in sync with the
policy of Government of India on population control. If the
reliefs sought for by the appellant is granted, it would amount
to incentivizing breach of population control norms and may
have severe and adverse impact on government’s policy of
managing small family norms as a population control measure.
7.3. Learned counsel has referred to FR 101(a) and
submits that the same bars grant of maternity benefit beyond
the second child. Permanent married women government
servants and non-permanent married women government
servants may be granted maternity leave with less than two
surviving children or with two surviving children born as twins
8
in the first delivery. Insofar the present case is concerned,
appellant already has two children from her first marriage.
Therefore, she is not entitled to maternity benefit for the third
child. That apart, provisions of the Maternity Benefit Act are
not applicable to state government employees like the appellant.
However, benefits extended to government employees of Tamil
Nadu as social welfare measures are more beneficial than under
the Maternity Benefit Act.
7.4. Learned counsel submits that appeal of the appellant
is without any merit and, therefore, the same is liable to be
dismissed.
8. We have considered the rival submissions of the
learned counsel representing the parties.
9. Let us first deal with the order dated 28.08.2021
passed by the third respondent under the heading: Proceeding
of Dharmapuri District Chief Educational Officer. By the
aforesaid order, request of the appellant for maternity leave was
rejected on the ground that there is no provision in the Tamil
9
Nadu Fundamental Rules for grant of maternity leave for third
child through re-marriage. Order dated 28.08.2021 reads thus:
On the above subject matter, the letter in the
reference cited was received on 18.08.2021 in this office.
Smt. K. Umadevi had two children by her first marriage.
After getting divorced for personal reason, she remarried
and through remarriage she has now applied for
maternity leave for the third child from 17.08.2021.
Since as per Rule 101 (a) of the Tamil Nadu
Fundamental Rules, maternity leave can be granted to a
woman government servant with less than two living
children only, the request of the individual to sanction
maternity leave to her third child may be rejected by
informing that there is no provision in the Tamil Nadu
Fundamental rules for grant of maternity leave for third
child through remarriage.
10. When this was challenged before the High Court,
learned Single Judge referred to various case laws and also
relied upon the Maternity Benefit Act and held that provisions
of the Maternity Benefit Act have overriding effect on any other
law inconsistent therewith. It was held that the rule providing
cap on the number of children for entitlement of maternity
benefit is repugnant to the Maternity Benefit Act which is a
10
central enactment. Further, two surviving children must mean
children in lawful custody of the mother. Appellant was not
having the custody of children born from the first wedlock. A
semantic construct of the expression ‘having surviving children’
must mean that the woman government employee seeking
maternity benefit should have custody of the children. The
thrust should be on grant of the benefit by adopting a liberal
interpretation. Learned Single Judge also noted that the State
Government had issued G.O.Ms. No. 84 dated 23.08.2021
enhancing maternity leave from 9 months to 12 months
underlying the importance of maternity leave. Therefore,
learned Single Judge concluded that rejection of the claim of the
appellant for maternity leave was wholly unjustified. Vide the
judgment and order of the learned Single Judge dated
25.03.2022, order dated 28.08.2021 was set aside.
Respondents were directed to sanction maternity leave to the
appellant for the period from 11.10.2021 to 10.10.2022 as
admissible in terms of the latest G.O.Ms. No. 84 dated
23.08.2021.
11
11. When the aforesaid judgment and order of the
learned Single Judge was assailed in intra-court appeal,
Division Bench noted that insofar policy of the State is
concerned it restricts benefit of maternity leave to two children.
Therefore, appellant was not entitled to benefit of maternity
leave for the third child. Grant of maternity leave is not a
fundamental right. It is either a statutory right or a right which
flows from the conditions of service. Insofar the decision of this
Court in Deepika Singh (supra) is concerned, Division Bench
observed that the said decision supports the case of the State,
particularly paragraph 17 thereof. In the circumstances,
Division Bench vide the impugned judgment held that appellant
was not entitled to the relief as claimed by her. Consequently,
while allowing the writ appeal, judgment and order of the
learned Single Judge has been set aside.
12. We need to examine the correctness or otherwise of
the decision of the Division Bench in the light of constitutional
and statutory framework as well as in the backdrop of
international developments.
12
13. Article 21 of the Constitution of India though at first
blush appears to be a colourless article, it is a potent provision
pregnant with wide width and scope having received extensive
and liberal construction at the hands of this Court. Article 21
reads thus:
21. Protection of life and personal liberty. – No person
shall be deprived of his life or personal liberty except
according to procedure established by law.
13.1. By judicial interpretation, it has been held that life
under Article 21 means life in its fullest sense; all that which
makes life more meaningful, worth living like a human being.
Right to life includes all the finer graces of human civilization,
thus rendering this fundamental right a repository of various
human rights. Right to life also includes the right to health.
Right to live with human dignity and the right to privacy are now
acknowledged facets of Article 21.
14. Article 42 of the Constitution of India which is one of
the directive principles of State policy mandates that the State
13
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.
15. 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
organized people with one another.
16. We may now refer to FR 101(a) as applicable to the
State of Tamil Nadu. For ready reference, the same is extracted
hereunder:
Rule 101 (a) - maternity leave to female Government
servants.
Instructions under Rule 101 (a) – Maternity leave.
1. (i) A competent authority may grant maternity
leave on full pay to permanent married women
Government servants and to non-permanent married
women Government servants, who are appointed on
regular capacity, for a period not exceeding 365 days,
14
which may spread over from the pre-confinement rest to
post confinement recuperation at the option of the
Government servant. Non-permanent married women
Government servants, who are appointed on regular
capacity and join duty after delivery shall also be granted
maternity leave for the remaining period of 365 days after
deducting the number of days from the date of delivery to
the date of joining in Government service (both days
inclusive) for the post confinement recuperation.
(ii) Non-permanent married women Government
servants, who are appointed under the emergency
provisions of the relevant service rules should take for
maternity purposes, the earned leave for which they may
be eligible. If, however, such a Government servant is not
eligible for earned leave or if the leave to her credit is less
than 365 days, maternity leave may be granted for a
period not exceeding 365 days or for the period that falls
short of 365 days, as the case may be. Non-permanent
married women Government servants employed under
the emergency provisions should have completed one
year of continuous service including leave periods, if any,
to become eligible for the grant of maternity leave.
Provided that the maternity leave referred in (i) or
(ii) above shall be granted to a married woman
Government servant with less than two surviving
children.
15
Provided further that in the case of a woman
Government servant with two surviving children born as
twins in the first delivery, maternity leave shall be
granted for one more delivery.
17. As per the first proviso to clause (ii) of FR 101(a),
maternity leave referred to clauses (i) or (ii) shall be granted to
a married woman Government servant with less than two
surviving children. The second proviso says that in the case of
a woman Government servant with two surviving children born
as twins in the first delivery, maternity leave shall be granted
for one more delivery.
18. Though provisions of the Maternity Benefit Act per se
are not applicable to the State Government employees,
nonetheless, we may make a reference to certain relevant
provisions thereof for useful guidance. Section 5 of the
Maternity Benefit Act is as under:
5. Right to payment of maternity benefit. —(1) Subject
to the provisions of this Act, 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
16
immediately preceding the day of her delivery, the actual
day of her delivery and any period immediately following
that day.
Explanation.—For the purpose 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, the minimum rate of wage fixed or
revised under the Minimum Wages Act, 1948 (11 of 1948),
or ten rupees, whichever is the highest.
(2) No woman shall be entitled to maternity benefit unless
she has actually worked in an establishment of the
employer from whom she claims maternity benefit, for a
period of not less than eighty days in the twelve months
immediately preceding the date of her expected delivery:
Provided that the qualifying period of eighty days
aforesaid shall not apply to a woman who has immigrated
into the State of Assam and was pregnant at the time of
the immigration.
Explanation.—For the purpose of calculating under
this sub-section the days on which a woman has actually
worked in the establishment, the days for which she has
been laid off or was on holidays declared under any law for
the time being in force to be holidays with wages, during
17
the period of twelve months immediately preceding the
date of her expected delivery shall be taken into account.
(3) The maximum period for which any woman shall be
entitled to maternity benefit shall be twenty-six weeks of
which not more than eight weeks shall precede the date of
her expected delivery :
Provided that the maximum period entitled to
maternity benefit by a woman having two or more than two
surviving children shall be twelve weeks of which not more
than six weeks shall precede the date of her expected
delivery :
Provided further that where a woman dies during this
period, the maternity benefit shall be payable only for the
days up to and including the day of her death:
Provided also that where a woman, having been
delivered of a child, dies during her delivery or during the
period immediately following the date of her delivery, for
which she is entitled for the maternity benefit, leaving
behind in either case the child, the employer shall be liable
for the maternity benefit for that entire period but if the
child also dies during the said period, then, for the days
up to and including the date of the death of the child.
(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
18
date the child is handed over to the adopting mother or the
commissioning mother, as the case may be.
(5) In case where the nature of work assigned to a woman
is of such nature that she may work from home, the
employer may allow her to do so after availing of the
maternity benefit for such period and on such conditions
as the employer and the woman may mutually agree.
19. A careful perusal of the above provision would reveal
that grant of maternity benefit is per se not denied to a woman
employee having more than two children. Following amendment
in the year 2017, a restriction has been introduced in Section 5
by inserting a proviso under sub-section (3) as to the
entitlement of the period of maternity leave. A woman employee
having less than two surviving children is entitled to a
maximum period of benefit i.e. 26 weeks and for a woman
employee having two or more than two surviving children, the
benefit is restricted to 12 weeks. Thus, there is no ceiling or cap
on the number of children to claim maternity benefit. Only thing
is that in case of a woman employee having two or more than
two surviving children seeking maternity leave, period of the
19
benefit is reduced: from a maximum period of 26 weeks to a
maximum of 12 weeks.
20. Section 27 of the Maternity Benefit Act is also
relevant. It deals with effect of laws and agreements
inconsistent with the Maternity Benefit Act and declares that
provisions of the Maternity Benefit Act shall have effect
notwithstanding anything inconsistent therewith contained in
any other law or in terms of any award, agreement or contract
of service, whether made before or after the coming into force of
the Maternity Benefit Act.
21. The objective of maternity leave has been expounded
by this Court in the case of B. Shah Vs. Presiding Officer, Labour
2
Court, Coimbatore . This Court observed that maternity leave
legislation is intended to achieve the object of doing social
justice to women workers. It enables a woman worker not only
to subsist but also to make up her dissipated energy, nurse her
2
AIR 1978 SC 12
20
child, preserve her efficiency as a worker and maintain the level
of her previous efficiency and output.
22. We may now deal with relevant provisions contained
in international treaties and conventions dealing with maternity
benefits.
23. Universal Declaration of Human Rights was adopted
by the United Nations in the year 1948. Article 25 thereof has
got two sub-articles. Sub-article (1) says that everyone has the
right to a standard of living adequate for the health and well-
being of himself and of his family. This includes food, clothing,
housing, medical care etc. However, Article 25(2) is relevant
which is as under:
2. Motherhood and childhood are entitled to special care
and assistance. All children, whether born in or out of
wedlock, shall enjoy the same social protection.
23.1. Thus, Article 25(2) of the Universal Declaration of
Human Rights recognizes that motherhood and childhood are
entitled to special care and assistance. This principle
21
acknowledges State intervention and support for maternity
related entitlements.
24. International Covenant on Economic, Social and
Cultural Rights was adopted by the General Assembly of the
th
United Nations on 16 December, 1966. India ratified the said
covenant in the year 1979. Article 10(2) recognizes that special
protection should be accorded to mothers for a reasonable
period before and after childbirth. During such period working
mothers should be accorded paid leave or leave with adequate
social security benefits. Under Article 12 all the States who are
signatories to the aforesaid covenant acknowledged the steps to
be taken to achieve the full realization of the right to enjoy the
highest attainable standard of physical and mental health. This
would include provisions for the reduction of the stillbirth rate
and of infant mortality and for the healthy development of the
child.
25. The Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) was held in 1979
under the aegis of the United Nations. As a matter of fact,
22
CEDAW was adopted by the United Nations General Assembly
th
on 18 December, 1979. This convention was the culmination
of more than 30 years of work by the United Nations
Commission on the Status of Women, established in the year
1946, monitoring the situation of women around the world and
to promote women’s rights. Thrust of CEDAW is maximum
participation of women on equal terms with men in all fields of
life to ensure full and complete development of a country.
CEDAW is the most comprehensive international convention
focused on eliminating discrimination against women. India
ratified CEDAW in 1993.
25.1. Article 11 emphasizes that appropriate measures
should be taken by all nations to eliminate discrimination
against women in the field of employment. Article 11(2) says
that in order to prevent discrimination against women on the
grounds of marriage or maternity and to ensure their effective
right to work, the States shall take appropriate measures. As
per clause (b), signatory States are under an obligation to
introduce maternity leave with pay or with comparable social
23
benefits without loss of former employment, seniority or social
allowances. Article 12(1) obligates States to take all appropriate
measures to eliminate discrimination against women in the field
of healthcare including access to healthcare services
particularly those related to family planning. On the other hand,
Article 12(2) says that notwithstanding the provisions of Article
12(1), signatory States shall ensure to women appropriate
services in connection with pregnancy, confinement and the
post-natal period, granting free services where necessary, as
well as adequate nutrition during pregnancy and lactation.
25.2. Article 16(1)(e) affirms the right of a woman to decide
freely and responsibly on the number and spacing of children
and to have access to the information, education and means to
do so. Article 16(1)(e) reads thus:
Article 16
1. States Parties shall take all appropriate
measures to eliminate discrimination against women in
all matters relating to marriage and family relations and
in particular shall ensure, on a basis of equality of men
and women:
24
(e) The same rights to decide freely and responsibly on
the number and spacing of their children and to have
access to the information, education and means to enable
them to exercise these rights.
th
26. In its 20 session held in 1999, CEDAW adopted
several recommendations. General recommendation No.24
pertains to women and health. Such recommendation
emphasized on the need to ensure access to adequate
healthcare facilities particularly in respect of family planning,
protection of women’s health and safety in working conditions,
including safeguarding of the reproductive function, special
protection from harmful types of work during pregnancy and
with the provision for paid maternity leave. It was also
emphasized that women should have the same rights as men to
decide freely and responsibly on the number and spacing of
their children.
th
27. A Maternity Protection Convention was held on 30
May, 2000 at Geneva under the aegis of the International
25
Labour Organization. General Conference of the International
Labour Organization adopted the proposals of the said
th
Convention on 15 June, 2000. International labour standards
have long recognized maternity protection as essential for
promoting workplace equality and safeguarding maternal and
child health. This Convention applies to all employed women
including those in atypical forms of dependent work. Article 4
of this convention deals with maternity leave. As per clause (1),
a woman to whom the said convention applied shall be entitled
to a period of maternity leave of not less than 14 weeks. As per
clause (4), maternity leave shall include a period of 6 weeks
compulsory leave after childbirth for the protection of the health
of the mother and that of the child. Clause (5) clarifies that the
prenatal portion of maternity leave shall be extended by any
period elapsing between the presumed date of childbirth and
the actual date of childbirth, without reduction in any
compulsory portion of postnatal leave.
27.1. Under Article 8(1), it shall be unlawful for an
employer to terminate the employment of a woman during her
26
pregnancy. As per clause (2), a woman is guaranteed the right
to return to the same position or an equivalent position paid at
the same rate at the end of her maternity leave.
28. Thus, as can be seen from the above, through various
international conventions, the world community has recognized
the broad spectrum of reproductive rights which includes
maternity benefits. Maternity leave is integral to maternity
benefits. Reproductive rights are now recognized as part of
several intersecting domains of international human rights law
viz. the right to health, right to privacy, right to equality and
non-discrimination and the right to dignity.
29. Such international developments had its impact on
3
Indian law. In Suchita Srivastava Vs. Chandigarh Administration ,
a three-Judge Bench of this Court in the context of the Medical
Termination of Pregnancy Act, 1971 acknowledged the right of a
woman to make reproductive choices and held that such a right
is a facet of Article 21 of the Constitution. This Court held thus:
3
(2009) 9 SCC 1
27
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 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.
4
30. This Court in Devika Biswas Vs. Union of India
observed that the need to respect and protect reproductive
rights and reproductive health of a person has been recognized.
Reproductive right is an aspect of personal liberty under Article
21 of the Constitution. This decision was rendered in the
4
(2016) 10 SCC 726
28
backdrop of the sterlisation campaign carried out by the State.
In Devika Biswas (supra), this court observed as under:
106. The manner in which sterilisation procedures have
reportedly been carried out endanger two important
components of the right to life under Article 21 of the
Constitution—the right to health and the reproductive
rights of a person.
109. That the right to health is an integral part of the
right to life does not need any repetition.
110. Over time, there has been recognition of the need to
respect and protect the reproductive rights and
reproductive health of a person. Reproductive health has
been defined as “the capability to reproduce and the
freedom to make informed, free and responsible
decisions. It also includes access to a range of
reproductive health information, goods, facilities and
services to enable individuals to make informed, free and
responsible decisions about their reproductive behaviour”.
The Committee on Economic, Social and Cultural Rights
in
General Comment No. 22 on the Right to Sexual and
Reproductive Health under Article 12 of the International
Covenant on Economic, Social and Cultural Rights
observed that “The right to sexual and reproductive
29
health is an integral part of the right of everyone to the
highest attainable physical and mental health.”
111. This Court recognised reproductive rights as an
aspect of personal liberty under Article 21 of the
Constitution in Suchita Srivastava v. Chandigarh Admn.
The freedom to exercise these reproductive rights would
include the right to make a choice regarding sterilisation
on the basis of informed consent and free from any form
of coercion.
31. Elaborating on the contours of reproductive rights,
this Court in X Vs. Principal Secretary, Health and Family
5
Welfare Department, Govt. of NCT of Delhi observed that the
ambit of reproductive rights is not restricted to the right of
women to have or not to 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 health. This Court observed that although human
dignity inheres in every individual, it is susceptible to violation
by external conditions and treatment imposed by the State. The
5
(2023) 9 SCC 433
30
right of every woman to make reproductive choices without
undue interference from the State is central to the idea of
human dignity. Deprivation of access to reproductive healthcare
or emotional and physical well-being also injures the dignity of
women. This Court referred to Article 51 of the Constitution
which urges the State to foster respect for international law and
treaty obligations. Relevant extract of the said decision reads
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 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.
31
32. In a recent decision, Delhi High Court in
6
Commissioner of Police Vs. Raveena Yadav explained the
purpose of maternity benefit. It is to ensure that a working lady
may overcome the state of motherhood honourably, peaceably
and undeterred by the fear of being victimized for forced
absence from work during pre and post natal periods. Women
now constituting a sizable portion of the work force in our
country, must be treated with honour and dignity at places
where they work to earn their livelihood. The High Court went
on to explain the impact of pregnancy on the physiological and
psychological state of a woman employee undergoing
pregnancy. It is not just motherhood but also childhood that
require special attention. Health issues of both mother as well
as that of the child are to be kept in consideration while
providing maternity leave. Concept of maternity leave is a
matter of not just fair play and social justice but is also a
constitutional guarantee to the women employees of this
country towards fulfillment whereof the State is bound to act.
6
MANU/DE/4823/2024
32
33. In Deepika Singh (supra), appellant at the material
time was working as a nursing officer in the Post Graduate
Institute of Medical Education and Research, Chandigarh
(PGIMER). Her spouse had two children from his first marriage.
After his first wife passed away he married the appellant. In
official record she declared the two children of her spouse from
the first marriage as her children. On 04.06.2019 she had her
first biological child from her marriage. She applied for
maternity leave in terms of Rule 43 of the Central Services
(Leave) Rules, 1972 (‘1972 Rules’ hereinafter) which rules are
applicable to PGIMER. Request of the appellant for grant of
maternity leave was rejected on the ground that she had two
surviving children and had availed of child care leave earlier for
the two children born from the first marriage of her spouse. Her
first biological child was considered as the third child. Therefore
her request for grant of maternity leave was found to be
inadmissible in terms of the 1972 Rules.
33.1. Appellant challenged the said decision before the
Central Administrative Tribunal, Chandigarh Bench (Tribunal).
33
However, her original application was dismissed by the
Tribunal. When the appellant moved the High Court calling into
question the decision of the Tribunal, High Court also dismissed
the same on the ground that there was no perversity or illegality
in the judgment of the Tribunal.
33.2. Thereafter, the matter travelled to this Court. This
Court referred to Rule 43 of the 1972 Rules which deals with
maternity leave. As per Rule 43(1), only a female Government
servant with less than two surviving children may be granted
maternity leave. This Court opined that provisions of Rule 43(1)
must be imbued with a purposive construction. Since it is a
beneficial legislation, it has to be construed with a purpose
oriented approach and must receive a liberal construction to
promote its objects. The courts must bridge the gap between
law and society through the use of purposive interpretation.
Though this Court acknowledged that the Maternity Benefit Act
has no application to PGIMER as an establishment, yet for the
purpose of adopting an approach which furthers legislative
policy, referred to the provisions of the Maternity Benefit Act to
34
derive some guidance therefrom. After an exhaustive analysis of
Section 5 of the Maternity Benefit Act, this Court observed that
the said Act was enacted to secure women’s right to maternity
leave and to afford women with as much flexibility as possible
to live an autonomous life, both as a mother and as a worker.
Thereafter, this Court referred to the various international
treaties and conventions.
33.3. In the facts of that case, this Court observed that
spouse of the appellant had a prior marriage which had ended
as a result of the death of his wife after which the appellant
married him. However, what is relevant and important is the
following declaration of this Court:
24. …….The fact that the appellant’s spouse had
two biological children from his first marriage would not
impinge upon the entitlement of the appellant to avail
maternity leave for her sole biological child……
33.4. Thus, this Court was categorical in declaring that the
factum of appellant’s spouse having two biological children from
his first marriage would not impinge upon the entitlement of the
appellant to avail maternity leave for her sole biological child.
35
Grant of child care leave to the appellant for the two children of
her spouse from his previous marriage cannot be used to
disentitle her to maternity leave under Rule 43 of the 1972
Rules. In the context of employment, child birth has to be
construed as a natural incident of life and, hence, provisions for
maternity leave must be construed in that perspective.
Observing that when courts are confronted with such
situations, they would do well to attempt to give effect to the
purpose of the law in question rather than to prevent its
application.
34. Insofar the present case is concerned it is true that
appellant has two biological children out of her first wedlock.
But that was before entry into her service. Post entry into
service and from her subsisting marriage, this is her first child.
It has come on record that the two children out of her first
wedlock are not residing with her but with their father, who is
having their custody.
35. Policy of the State to arrest population growth by
resorting to various population control measures is certainly a
36
laudable objective. So is the objective of granting maternity
benefit to women employees. The object of having two child
norm as part of the measures to control population growth in
the country and the object of providing maternity benefit to
women employees including maternity leave in circumstances
such as in the present case are not mutually exclusive. The two
must be harmonized in a purposive and rationale manner to
achieve the social objective.
36. In the circumstances, we are unable to agree with the
view taken by the Division Bench of the High Court. Though
learned Single Judge had granted the relief to the appellant, we
are also unable to persuade ourselves to the line of reasoning of
the learned Single Judge.
37. We accordingly set aside the judgment and order of
the Division Bench of the High Court dated 14.09.2022 and
declare that appellant shall be granted maternity leave under
FR 101(a). Maternity benefits which are admissible to the
appellant shall be released to her within a period of two months
from today.
37
38. Appeal is accordingly allowed. However, there shall
be no order as to cost.
……………………………J.
[ABHAY S. OKA]
……………………………J.
[UJJAL BHUYAN]
NEW DELHI;
MAY 23, 2025.
38