Summary: This article examines the discriminatory framework of the Maternity Benefit Act, 1961 which grants maternity leave to adoptive mothers only when the adopted child is below three months of age. It argues that this exclusionary threshold conflicts with adoption laws, disadvantages mothers of older or special needs children and violates the guarantee of equality under Article 14. The piece calls for reforms to bring the law in line with contemporary realities and global standards.
Introduction
The 2017 amendment to the Maternity Benefit Act 1961 (“MBA”) was celebrated for expanding maternity leave to adoptive and commissioning mothers, finally acknowledging diverse paths to motherhood. However, this recognition was undermined by Section 5(4), which restricts maternity leave to mothers adopting children below three months of age. Mothers adopting older infants or children are denied any benefits and thus do not get maternity leave.
This exclusion not only forces adoptive mothers back into the dilemma of choosing between career and child but also contradicts the constitutional vision of equality. Recognising these injustices, Hamsaanandini, an adoptive mother, has challenged the constitutionality of Section 5(4) before the Supreme Court, arguing that it violates Article 14 by arbitrarily discriminating against adoptive mothers. In January 2025, the Court reserved its judgment, while questioning the rationale behind the three-month age cutoff and its reasonableness.
This article critically analyses Section 5(4) and the pending PIL. First, it highlights contradictions with adoption laws and the biases it reinforces. Second, it explores the under-examined jurisprudence to establish that maternity benefits are meant to cover the broader responsibilities of child-rearing and caregiving. Third, it argues that the provision is arbitrary under Article 14 and contrasts it with international standards. Finally, it proposes either a purposive interpretation of the MBA or its harmonisation with existing service rules.
Legal Contradictions And Reinforced Biases
The most glaring problem with Section 5(4) is its conflict with the adoption law. Under Section 38 of the Juvenile Justice Act, 2015 (“JJ Act”), a child must be declared legally free for adoption before proceedings begin. The Adoption Regulations, 2017 prescribe up to two months for infants to be declared free, while surrendered children come with a 60-day reconsideration period. Consequently, an adoption cannot be finalised within the three-month window envisioned by the MBA.
Infact, the adoption framework was recently revisited through the Juvenile Justice (Amendment) Act, 2021 and the Adoption Regulations, 2022. The 2021 Amendment vested jurisdiction in District Magistrates and set a limit of two months for adoption orders under Section 61, while the 2022 Regulations retained key procedures discussed above, such as the two-month inquiry to declare a child legally free and the sixty-day reconsideration period for surrendered children. The legislature thus chose to preserve these safeguards even in the most recent reforms, which showcases their centrality to adoption law. Yet the rule of three month introduced by the 2017 amendment to the MBA was never revisited or aligned with this regime.
This mismatch is confirmed by empirical data, with the information from the Central Adoption Resource Authority (CARA) between 2016 and 2020 showing that only four percent of adopted children were younger than three months at the time of adoption. In effect, Section 5(4) denies benefits to the overwhelming majority of adoptive mothers.
In addition to being practically impossible, the provisions also reinforce adoption biases. A Parliamentary Committee has itself acknowledged in its report that Indian parents are generally reluctant to adopt older children and children with special needs. By further limiting maternity benefits to very young infants, the law perpetuates a bias in favour of newborns, and it reduces adoptive parents’ incentive to adopt older children. Additionally, data from CARA shows that infants are adopted at much higher rates than children over two years old.
For children with special needs, the exclusion is particularly devastating. This is because adoptive mothers would have benefited from maternity leave as an opportunity to build rapport with the adopted child, make arrangements for supportive caregivers, and acclimate to the child’s care needs. Data from CARA, as of July 2024, shows that 76% of children eligible for domestic adoption in India are defined as special needs. While this cannot be solely attributed to Section 5(4), the absence of maternity support further hampers the ability of children with special needs to be placed permanently.
Thus, the provision not only contradicts adoption law but also entrenches discriminatory practices, undermining the very objective of adoption frameworks, which is securing the best interests of the child.
Why Maternity Leave Covers Child-rearing
While the government has been asked to justify the three-month threshold, one of the central justifications for Section 5(4) is the idea that maternity benefits exist primarily to address the physiological recovery of biological mothers. However, this narrow view ignores the recent judicial development.
Courts have consistently expanded the concept of maternity beyond childbirth to encompass caregiving. The Delhi High Court held that maternity leave covers both physical recovery and caregiving. It extended maternity benefits to commissioning mothers, noting that even without gestation, they are primary caregivers needing time to bond with the child. The Court relied on a Madras High Court ruling equating adoptive and commissioning mothers, emphasizing caregiving over gestation. Together, these decisions show that Indian maternity law has evolved to include adoptive and surrogate mothers, aligning with constitutional values and child welfare. Similarly, the Bombay High Court affirmed that maternity benefits are not confined to the mother’s recovery but are essential for nurturing the bond of affection between mother and child, especially during the first year, which is critical for attachment and development.
The courts have consistently held that maternity leave should not be denied on technical or procedural grounds, as it serves the greater interests of both the mother and the child. In State v. Ravina Yadav, the Delhi High Court observed that once a child is born, the best interests of the child are absolute and must guide the application of all maternity provisions. In a similar vein, the Himachal Pradesh High Court held that maternity leave is a constitutional entitlement and a mechanism of social justice aimed at ensuring a dignified and peaceful postnatal experience. While these observations were made in the context of denying benefits under a two-child norm, they reflect a broader evolution in the understanding of maternity benefits. Indeed, Ravina Yadav also emphasized that a child’s growth from the womb to infancy is integral to the very concept of maternity, as the early years are critical for physical, emotional, and psychological development. In this context, the statutorily mandated three-month rule appears arbitrary, as it rests on the erroneous premise that only newborns require maternal care. Even at four months, a child continues to depend on the mother for affection, stability, and nurturing.
In Part II, the article will establish why this threshold is violative of constitutional principles, inconsistent with international jurisprudence, and suggest reforms for the way forward.
Bio: Arima Kaushal is a fourth-year and Shashyak Roy is a second-year student at West Bengal National University of Juridical Sciences.
Ed Note: This piece was edited by Aditi Bhojnagarwala and published by Tamanna Yadav from the Student Editorial Team.
