State of Himachal Pradesh v. Sita Devi: Implications on Maternity & Paternity Rights

Recently, the Himachal Pradesh High Court Bench comprising of Hon’ble Mr. Justice Tarlok Singh Chauhan & Hon’ble Mr. Justice Virender Singh in the case of State of Himachal Pradesh v. Sita Devi, Civil Writ Petition No.647/2020 held that “every female employee and male employee whether appointed on regular basis, contractual basis, ad hoc basis, tenure/temporary basis has a fundamental right to reasonable duration of maternity leave as well as paternity leave, childcare leave (CCL) to promote motherhood and childcare under Article 21 Constitution of India read with Article 42 of the Constitution of India.”

Understanding the Case

In the present matter of State of Himachal Pradesh v. Sita Devi, Civil Writ Petition No.647/2020, the respondent Sita Devi had taken a maternity leave of 3 months after giving birth in 1996, due to which she had worked only for 156 days in a year as against the minimum requirement of 240 days. The Himachal Pradesh Administrative Tribunal, in this matter, had ruled in the favour of the respondent, granting her the benefits of maternity leave and thereby conferring her work-charge status after completing 8 years of service. The said Tribunal had ruled that the respondent’s maternity leave should be considered as continuous service, which is provided under Section 25(B)(1) of the Industrial Dispute Act, 1947. Thus, aggrieved by the decision of the Tribunal, the State of Himachal Pradesh has filed the instant petition arguing that since there is no provision in the department for granting maternity leave to female daily wage workers, therefore, the Tribunal cannot direct the petitioners to grant the said relief.

Relevant Laws on maternity and paternity leave in India

It is Article 39, read with Articles 42 & 43 of the Constitution of India, 1950, which provides for the State’s obligation to provide maternity relief to women in India. Article 39(a) provides that the State shall direct its policy towards securing an adequate means to livelihood for all its citizens, men and women equally. Article 42 states that the State shall make provision for securing just and humane conditions of work and for maternity relief, while Article 43 provides that the State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, all workers, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities.

Under the new Maternity Benefit (Amendment) Act, 2017, the period of maternity leave has been extended from 12 weeks to 26 weeks as provided under Section 5(3) of the said Act. Such leave can be divided by the pregnant employee between pre-delivery and post-delivery period. This period of 26 weeks of maternity leave is for the first two pregnancies of the women, while for women expecting their 3^rd child, the maternity leave is 12 weeks only. Also, in cases of adoption and surrogacy, the period is 12 weeks for the adopting mothers and the commissioning mothers(a biological mother who imparts her egg to create an embryo which is then planted in the surrogate woman).

While with respect to paternity leave, we do not have a specific law in India. The only provision we have is provided under the Central Civil Services (Leave) Rule 551 (A) of 1972. As per this provision, a male employee can take up to 15 days of paid paternity leave, but only for his first two children. However, these rules are only applicable to government employees, and the private sector employees are at the mercy of their employers for the same. It was in the case of Chander Mohan Jain v. N.K Bagrodia Public School, W.P. (C) No. 8104 of 2009 that the High Court of Delhi recognized the right to paternity leave of male employees in the private sector. The Court, in this case, held that all male employees of unaided recognized private schools were entitled to paternity leave, and it also directed the school to refund the deducted amount to the petitioner.

Reasoning by the Court

The Court, in this case, has reiterated that every woman is entitled to maternity leave irrespective of her employment status. The Division Bench, in this case, has upheld the decision of the Himachal Pradesh Administrative Tribunal and dismissed the petition by the State. The Court further held that maternity leave is a fundamental human right of the respondent, which could not have been denied. Therefore, the action of the petitioner is violative of Article 39, read with Articles 42 & 43 of the Indian Constitution.

The Court,, in this case,, relied on domestic laws & international laws, as India is a signatory to various international covenants and treaties. The said provisions are as follows:

• Article 39, read with Articles 42 & 43 of the Constitution of India, 1950 provides for the State’s obligation to provide maternity relief to women in India.
• Article 25(2) of the Universal Declaration of Human Rights, 1948 stipulates that “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.” Article 6 of the said Conventions also provides that the State Parties shall recognize that every child has the inherent right to life, and it shall ensure to the maximum extent possible for the survival and development of the child.

Apart from the above provisions, the Court also cited the importance of the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) and the International Labour Organization: Maternity Protection Convention 2000, to which India is a signatory.

The following are the cases relied on by the Bench while deciding the petition:

• Municipal Corporation of Delhi v. Female Workers (Muster Roll) & Anr. (2000) 3 SCC 224 – In this case, it was held by the Supreme Court that the provisions of the Maternity Benefit Act, 1961 entitled maternity leave even to women engaged on a casual basis or on muster roll basis, daily wage and not only those in regular employment.
• Hindustan Antibiotics Ltd v. Workmen, AIR (1967) SC 948- In this case, it was held by the Court that labour to whichever sector it may belong in a particular region and in a particular industry will be treated on an equal basis.
• Sushma Devi v. State of H.P. & Ors. 2021 (2) SLC 923- In this case, the bench of this Court extended the benefit of maternity leave even to a contractual employee who had begotten the child through surrogacy.
• State of H.P. & Ors. v. Sudesh Kumari (2015) 1 HLR DB 36- In this case, the bench of this Court held that there is no difference between a female regular employee and a contractual employee/ ad hoc employee in law. A female employee, whether regular, temporary or ad hoc, is a female for all intents and purposes, and she has a matrimonial home matrimonial life; and after conception, she has to undergo the entire maternity period, the same treatment, pains and other difficulties which a regular employee has to undergo.

Thus, in the above case, the Court has reiterated the importance of motherhood & maternity leave while it talked about paternity leave in passing reference only. The Maternity Benefit (Amendment) Act, 2017, has brought great relief to women employees while the need to have a law on paternity leave remains a dream, with India having no uniform policy with regard to the same. In the present scenario, there have been talks on the issue of paternity leave in India with the aim to encourage fathers’ engagement in childcare and parenting while also offering them the chance to develop a close relationship with their kids during this critical period of the child’s life.

Shivangi Verma has completed her LL.M from the Faculty of Law, Jamia Millia Islamia University, New Delhi.

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