Denying maternity leave unconstitutional, if adopted child older than 3 months: SC

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New-Delhi: The Supreme Court on Tuesday ruled that Section 60(4) of the Code on Social Security, 2020, which allowed adoptive mothers to avail 12 weeks’ maternity leave only if the adopted child was below 3-months of age, is unconstitutional and violative of the Right to Equality for adoptive parents and the child.

A bench of Justices JB Pardiwala and R. Mahadevan held that adoptive mothers are entitled to maternity leave regardless the age of the children.

The Court read down the provision as follows: “A woman who legally adopts a child, or a commissioning mother, shall be entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.”

“In this context, adoptive mothers of children above three months are similarly situated to those adopting younger infants, as both require time for bonding, caregiving, and adjustment,” the court said.

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It further said that “denying benefits based solely on the child’s age creates an artificial and unreasonable classification.”

The Court further noted that the provision fails to account for the significant emotional, psychological, and practical adjustments that accompany adoption, irrespective of the child’s age.

The petition was filed in 2021 originally challenging Section 5(4) of the Maternity Benefit Act, 1961, as amended by the Maternity Benefit (Amendment) Act, 2017, which grants maternity leave of 12 weeks to an adoptive mother only if the child adopted is below three months of age. On November 12, 2024, the Court issued notice to the Union Government on a PIL filed by an adoptive mother who has adopted two children since 2017.

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