A PIL which challenges the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961 has been filed in the Supreme Court. This section stipulates that adoptive mothers can only receive maternity leave if they adopt children who are less than 3 months old.
According to the provision, a person must be an adoptive parent of a child under three months to receive the maternity leave of 12 weeks.
There is no provision for maternity leave at all for a mother who is adopting an abandoned, orphan or foster child who is older than three months.
Such kind of distinction would lead to parents choosing to adopt newborns as against older children, the petition filed by Hamsaanandini Nanduri read.
Section 5 (4), therefore, is discriminatory not only between biological and adoptive mothers but also between adopted children. In addition, the plea stated that the provision was also contrary and in conflict with the letter and spirit of the Juvenile Justice Act because it did not take into account the adoption process under the JJ Act and the regulations imposed under that Act, the Adoption Regulations. This is because the adoption process, which requires any orphaned, surrendered or abandoned child to be declared “legally free for adoption” by the Child Welfare Committee under the JJ Act, cannot be completed within a minimum period of three months, referred to in Section 5 (4) of the Maternity Benefit Act.
This would make it rather impossible for any mother to find an orphaned, abandoned or surrendered child who is less than the age of three months, a petition filed by M / s Mukesh Kumar Singh & co and drawn by advocate Bani Dikshit contended.
The plea also took objection to discrimination in the maternity leave granted to the adoptive mothers as compared to the biological mother.
“The 12-week maternity leave provided to adoptive mothers is not only just a lip service but when compared with the 26-week maternity benefit offered to biological mothers, it even fails to stand up the basic scrutiny of Part III of the Constitution which is very much wedded to the concept of non-arbitrariness,” the petition read.
The petition will be heard by the bench comprising of Justice Abdul Nazeer and Krishna Murari on Friday.
