According to the court, “family relationships may take the form of domestic, unmarried or homosexual relationships,” a division bench of the Supreme Court comprising Justice Dr. DY Chandrachud and AS Bopanna recently while granting maternity relief to the appellant wife reiterated the same.
The appellant had already taken leave to care for the biological children born to the husband in his first marriage. On this basis, the Punjab and Haryana High Court refused to grant maternity leave to the appellant as she already had two living children. The High Court was of the view that the appellant’s biological son should be treated as his third child.
The Supreme Court, however, took a contrary view and observed that “the fact that the appellant had two biological children from her first marriage with her husband, therefore allows the appellant to take maternity leave for the only biological child of his own.” it does not affect the right.” The court further held that a family is broadly construed as “a single, unchanging unit consisting of a mother and a father (who remain stable over time) and their children. This notion is at the same time. The many circumstances that can cause a change in one’s family structure and the fact that many families do not meet this expectation.
matter of law
The law under discussion here relates to childcare leave and maternity leave granted under the Central Public Administration (Leave) Rules, 1972. Rule 43-C provides for maternity leave/ parental leave to a government employee who has children under 18 years of age. A maximum of two years (730 days) is granted for the care of more than two children. Maternity/child care leave also includes raising or caring for a child during illness and in accordance with the law.
In its decision, the Supreme Court took note of gender roles and norms that pressure women to shoulder the burden of unpaid domestic work.
Rule 43 of the Rules provides for maternity leave for a period of 180 days to a Government employee. Leave is granted to a woman who has less than two surviving children.
The Court considered that, since the appellant has already taken leave to care for her husband’s biological children from her first marriage, the request for maternity leave for her own biological child is rejected , therefore, is entitled to maternity leave. it doesn’t happen After their marriage, they are believed to have two surviving children.
Laws made for the benefit of citizens must be liberally interpreted. This point has been reiterated time and time again by the judiciary. A law/act that is not liberally understood will never be able to achieve its objectives.
Taking the example of a sentence, in a written sentence of the judge Dr. Chandrachud, the Supreme Court held that KH Nazar v. Mathew K. Based on the judgment of Jacob and others (2019). which pointed out that wherever possible the literal meaning of the beneficiary law should be avoided and the court should recognize the intent of the law.
He also referred to his judgment in Badshah Sau v. Urmila Badshah Godse and others (2013). In which it was pointed out that the duty of the court is to understand the intent of the law and allow it to achieve its purpose.
The Court’s view that homosexual relationships are family relationships is full of expectation and acceptance. However, these Supreme Court comments will not bring any significant relief to the LGBTQ+ community unless it is soon backed by codified laws.
The childcare leave/nursery leave and maternity leave provisions are beneficial laws. The understanding and purpose of providing such assistance will only be achieved through its objective interpretation. The granting of maternity leave in accordance with the rules will allow workers to secure their jobs.
A 2018 report titled “Prediction of Returning Mothers” by Ashoka University’s Genpact Center for Women’s Leadership revealed that half of all new mothers in India have lost their jobs, of which only 27 % was able to return to work. Despite the existence of provisions such as childcare and maternity leave, which allow women to return to work, the number of women who leave work after childbirth remains relatively high. Therefore, if female employees are not given these permissions and facilities to use them, this number will surely increase.
unpaid child leave
In its decision, the Supreme Court took note of gender roles and norms that pressure women to shoulder the burden of unpaid domestic work. Unpaid domestic work also largely includes childcare.
According to a recent Lancet Public Health Journal report, inequality in the division of unpaid work has a greater impact on the mental health of women than men. In its immediate ruling, the Supreme Court also cited an Organization for Economic Co-operation and Development survey that found Indian women spend 352 minutes a day on unpaid domestic work, which is 577 per hundred more than the time devoted to men.
The court observed that, “although some provisions of the 1972 Regulations have allowed women to enter the paid workforce, the primary responsibility for childcare rests with women.” The court held that in granting parental leave to the appellant, she should not be deprived of maternity leave under rule 43 of the Rules.
Describing a “family”
The Court’s view that homosexual relationships constitute a family relationship is not legally binding, but it is an important part of the decision, which is full of hope and acceptance.
However, these Supreme Court observations will not bring any significant relief to the LGBTQ+ community unless it is soon backed by codified laws. The court further noted that “these expressions of love and families may not be distinctive, but they are as real as their traditional counterparts.” In India, respect and integrity are intrinsically woven into the idea of a family.
Not everyone in homosexual relationships can afford to get married. Some couples still have to pretend to be friends or siblings while moving in together. Same-sex marriage remains a privilege of the rich and elite.
The Court’s finding that “these unusual expressions of family unity apply not only to legal protection but also to the benefits available under social welfare law” set a positive tone for the socio-legal acceptance of the LGBTQ+ community. there is still a lot of work to be done at ground level.
Courtesy: The Leaflet
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The Supreme Court’s progressive interpretation of the maternity leave provision is a shot in the arm for working women