- Why recent decision of Uttarakhand High Court is not appropriate?
- Arguments against having third child maternity benefits
- What will happen to the women who have already taken benefit after first judgment?
- Are women in control for birth of third Child?
- Way Forward
- IT’s Input
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- Recently, the Uttarakhand High Court passed an order denying maternity leave to women in government jobs in case they have a third child.
- The Uttarakhand High Court overruled the earlier single bench order which struck down government rule that denied maternity leave for women after their third pregnancy claiming that it went against Article 42 of the Constitution (provides for just and humane conditions of work and maternity relief) and Section 27 of the Maternity Benefit Act.
- After that, Uttarakhand government challenged the order of the single bench saying that women cannot claim benefits of the maternity act for 3rd child and could not be granted maternity leave for her third child in consonance with the second provision of the fundamental rule 153.
Why recent decision of Uttarakhand High Court is not appropriate?
- Every Indian citizen has got certain fundamental rights and reproduction is a right that every woman has. It is choice of a woman as to how many children she would like to have.
- Denying any maternity benefits to a woman only on the ground that she has third child affects the fundamental right to live a life with dignity and enjoy all the benefits of fundamental rights that every Indian citizen has.
- Moreover, the maternity benefit act does not specify how many children should a woman have and does not lay any guidelines for third child.
- By denying the rights to third child, government might have to spend more on that child as child might not get enough nutrition due to denial of maternity leave to mother, which result in child becoming liability to the country.
- When India do not have state citizenship, women of a particular state (Uttarakhand) should not be deprived from their fundamental rights, while women from other states are free to enjoy their rights.
- As the Family planning like any other development indicator is inextricably linked with gender and with other socio-economic issues, government should not deny third child maternity benefits.
- Hence, the recent decision of Uttarakhand High Court is arbitrary.
Arguments against having third child maternity benefits
- For any government, to endorse a third child maternity leave policy (i.e, women friendly policy), is very voter friendly and can work very well for the government.
- However, in the recent decision, the core problem which the government faced is that endorsing third child maternity benefit policy will counter its own family planning measures.
- Moreover, government, beyond a point, cannot impose guidelines on industries/corporates for providing maternity benefits to a woman with a third child. In the past, the industries have raised question on allowing 26 weeks as maternity leave.
- Government is struggling to keep the TFR (total fertility rate) down to achieve the replacement levels and states like Uttar Pradesh, Bihar, Madhya Pradesh, Chhattisgarh and Jharkhand are densely populated and still have a high total fertility rate. In such situation, the government can cannot really allow a third child maternity leave policy.
- By promoting a maternity leave, government might actually endorse the third child which is against its population explosion counter measures.
What will happen to the women who have already taken benefit after first judgment?
- Earlier, a single bench High Court allowed the maternity benefit for third child. After which, the government challenged it and a two bench high court overruled the decision of single bench judgement.
- During the time between these two judgements, several woman has taken benefit of third child maternity leave as single bench High Court allowed that.
- However, the recent decision of two judge bench cannot have retrospective effect. i.e, women who have already taken third child maternity benefits cannot be deprived from their rights.
- This double bench judgement does not specify a cutoff date for having a third child. Hence, this decision only applies to women who gave birth after this judgement has been delivered.
Are women in control for birth of third Child?
- One should also look at the causes of the birth of a third child. One has to understand that whether women have an access to contraceptives, whether they have a choice for pregnancy or not. All these issues are related with education and women empowerment, and in turn, related with maternity benefits.
- In India, the birth of third child is religion as well as gender based For instance, some family go for third child when they don’t get a male child as first two children.
- Government should have come out with some innovative idea such as giving some perks and benefits to those who are not producing more than two children rather than denying the rights of a third child.
- Government as well as the courts have to be very cautious while taking decision regarding maternity benefits because by trying to be more women friendly where probably it is not necessary, their decisions might affect the employability of women.
- There has to be strict laws on gender based birth checks in hospitals (due to male baby preference over female).
- There should be more awareness about reproduction measures. Some women are not even aware of those measures or they have many lots of social pressures attached to it.
- Government should also focus on unemployed sector of women, especially in the rural sectors, where there are absolutely no checks at all about how many children that are being born. Those women are not getting any maternity benefits in any case.
- Government should give financial benefits and as well as kind of encouragement to those who actually are opting for family planning.
- There should be other innovative measures in education awareness, women empowerment and incentivizing birth control which includes making contraceptive tools available to both women and men.
- The recent verdict of the Uttrakhand High Court is against the very spirit and the principles of the maternal benefit Act
- There is need to have more innovative ideas for family planning rather depriving fundamental rights of third children.
- Female education, Social awareness, Changing the mindset etc. need to be looked at more seriously.
- There has to be a regulation rather than banning anything.
About the Maternity Benefit Act, 1961
- The Maternity Benefit Act, 1961, applies to establishments employing 10 or more than 10 persons in factories, mines, plantation, shops & establishments and other entities.
- The main purpose of this Act is to regulate the employment of women in certain establishments for certain period before and after child birth and to provide maternity benefit and certain other benefits.
- The Act was amended through the Maternity Benefit (Amendment) Act, 2017.
About the Maternity Benefit (Amendment) Act, 2017
The amendment has brought in major changes to the law relating to maternity benefits. These are:
Duration of maternity leave
- The 1961 Act states that every woman will be entitled to maternity benefit of 12 weeks. The Amendment Act increases this to 26 weeks.
- Under the Act, this maternity benefit should not be availed before six weeks from the date of expected delivery. The Amendment Act changes this to eight weeks.
- In case of a woman who has two or more children, the maternity benefit will continue to be 12 weeks, which cannot be availed before six weeks from the date of the expected delivery.
Maternity leave for adoptive and commissioning mothers
- The Amendment Act introduces a provision to grant 12 weeks of maternity leave to: (i) a woman who legally adopts a child below three months of age; and (ii) a commissioning mother.
- A commissioning mother is defined as a biological mother who uses her egg to create an embryo implanted in another woman.
Option to work from home
- The Amendment Act introduces a provision that states that an employer may permit a woman to work from home.
- The Amendment Act introduces a provision which requires every establishment with 50 or more employees to provide crèche facilities within a prescribed distance. The woman will be allowed four visits to the crèche in a day. This will include her interval for rest.
Informing women employees of the right to maternity leave
- The Amendment Act introduces a provision which requires every establishment to intimate a woman at the time of her appointment of the maternity benefits available to her.