On Friday, the Supreme Court issued a notice to the Centre on a plea challenging the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961 that states adoptive mothers will be eligible for maternity leave only if they adopt children who are less than three months old.

This condition needs to be met if the mothers want to take 12 weeks of maternity leave.

A bench comprising of Justice S Abdul Nazeer and Justice Krishna Murari said that the petitioner has “just cause”.

The petition, filed by lawyer Hamsaanandini Nanduri, said that such a distinction will lead to parents preferring to adopt newborn children to older ones.

“Section 5(4) apart from being discriminatory and arbitrary towards the adoptive mothers, also arbitrarily discriminates against orphaned, abandoned or surrendered children above the age of three months, which is completely incompatible to the object of the Maternity Benefit Act as well as the JJ [Juvenile Justice] Act,” the petition stated.

The petitioner also argued that the provision of the Maternity Benefit Act was in conflict with the Juvenile Justice Act and the adoption regulations.

It said that the process of adoption under the Juvenile Justice Act states that any child who has been orphaned, abandoned or surrendered should be declared legally free for adoption by the Child Welfare Committee. The petitioner contended that this process cannot be completed in three months.

In addition, the petition said that adoption regulations takes at least two months for a child to be declared legally free for adoption in accordance with law.

“Inevitably, such processes and procedures are fraught with delays,” the petitioner submitted.

These conditions would make it impossible for a mother to adopt a child who is less than three months old and therefore it will prevent them from taking maternity leaves, argued Nanduri.

“The purported 12 weeks of maternity benefit to adoptive mothers is not only a mere lip service but when juxtaposed with the maternity benefit of 26 weeks provided to biological mothers, fails to stand even the basic scrutiny of Part III of the Constitution [fundamental rights] which is wedded to the concept of non-arbitrariness,” the petition added.

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