Woman marrying father of 2 not entitled to maternity leave: HC

Saurabh Malik

Tribune News Service

Chandigarh, July 3

A woman who marries a father of two is not entitled to maternity leave, the Punjab and Haryana High Court has held.

The judgment, blurring the distinction between step and natural mother for the purpose of granting maternity leave, is currently under the Supreme Court scanner and will come up for hearing on September 7. Notices have already been issued to the employer and other respondents in this regard.

Taking up the plea by a nursing officer, the High Court Bench of Justice Jaswant Singh and Justice Sant Parkash observed that Rule 43 of Central Civil Services (leave) Rules, 1972, made it clear that maternity leave could be granted to a woman government servant only if she had less than two surviving children. The bench held that the petitioner-employee was not the biological mother of two children born from the first wedlock of her husband. But she could not deny the fact that she was now their mother. As such, the petitioner already had two surviving children. “Any child born to her is to be considered a third child.”

The woman had initially moved the Central Administrative Tribunal (CAT) for quashing orders whereby her request for maternity leave was turned down and converted into earned leave. Directions were also sought for sanctioning maternity leave by treating the newly born as her first child and to regularise the leave period.

The tribunal was told that it was her first marriage, while her husband had tied the knot for the second time after the death of his earlier wife. But the tribunal on January 29 rejected her plea for maternity leave from June 4, 2019, to November 30, 2019, compelling her to move the HC.

Assisted by counsel Dhiraj Chawla, the bench asserted that the petitioner’s claim that the child born to her was required to be treated as her first for the purpose of maternity leave was not admissible under the rule.

The bench added that the petitioner admittedly got the names of the children born from the first wedlock of her husband entered in the office record and availed child care leave on several occasions.

“We are of the considered view that CAT has rightly observed in the impugned order that “…for all practical purposes, the applicant has two surviving children. As such, any child born to her now can only be considered as a third child,”’ the bench asserted, adding that it did not find any perversity or illegality in the impugned orders.

Judgment under Supreme Court scanner

The judgment, blurring the distinction between step and natural mother for the purpose of granting maternity leave, is currently under the Supreme Court scanner and will come up for hearing on September 7. Notices have already been issued to the employer and other respondents in this regard.