DEEPIKA SINGH versus CENTRAL ADMINISTRATIVE TRIBUNAL AND OTHERS on 16 August 2022

[2022] 7 S.C.R. 557

DEEPIKA SINGH

v.

CENTRAL ADMINISTRATIVE TRIBUNAL AND OTHERS

(Civil Appeal No. 5308 of 2022)

AUGUST 16, 2022

[DR DHANANJAYA Y CHANDRACHUD AND

A S BOPANNA, JJ.]

Service Law: Central Civil Services (Leave) Rules 1972: r. 43– Maternity leave – Entitlement to – Female government servant-nursing officer applied for maternity leave on the birth of her firstbiological child when she had already taken the benefit of childcare leave in respect of the two children born to her spouse from hisfirst marriage – Rejected by the tribunal as also the High Court –On appeal, held: Independent of the grant of maternity leave, awoman is also entitled to the grant of child care leave for takingcare of her two eldest surviving children whether for rearing or forlooking after any of their needs, such as education, sickness andthe like – Both maternity leave and child care leave constitute distinctentitlements – The fact that the nursing officer’s spouse had twobiological children from his first marriage would not impinge uponher entitlement to avail maternity leave for her sole biological child– Grant of child care leave to her cannot be used to disentitle her tomaternity leave u/r. 43 – Unless a purposive interpretation were tobe adopted, the object and intent of the grant of maternity leavewould simply be defeated – Grant of maternity leave under the Rulesof 1972 is intended to facilitate the continuance of women in theworkplace – Child birth has to be construed in the context ofemployment as a natural incident of life and hence, the provisionsfor maternity leave must be construed in that perspective –Furthermore, the guardians and caretakers-mother and father, ofchildren may change with remarriage, adoption, or fostering – Suchatypical manifestations of the family unit are equally deserving notonly of protection under law but also of the benefits available undersocial welfare legislation – On facts, the structure of the employee’sfamily changed when she took on a parental role with respect toher spouse’s biological children from his previous marriage – Whencourts are confronted with such situations, they would do well to

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Aattempt to give effect to the purpose of the law in question ratherthan to prevent its application – Thus, the nursing officer was entitledto the grant of maternity leave – Judgment of the High Court andthe tribunal is set aside.

Allowing the appeal, the CourtB

HELD: 1.1 Under Article 15(3) of the Constitution, the Stateis empowered to enact beneficial provisions for advancing theinterests of women. The right to reproduction and child rearinghas been recognized as an important facet of a person's right toprivacy, dignity and bodily integrity under Article 21. Article 42Cenjoins the State to make provisions for securing just and humaneconditions of work and for maternity relief. [Para 21][572-B-C]

1.2 India has ratified to several international conventionsof the United Nations. Article 25(2) of the UDHR provides thatmotherhood and childhood are entitled to special care andDassistance. Article 11(2)(b) of CEDAW requires states “tointroduce maternity leave with pay or comparable social benefits.”In alignment with the Constitution as well as the treatiesmentioned, Rule 43(1) of the Rules of 1972 contemplates thegrant of maternity leave for a period of 180 days. Independent ofthe grant of maternity leave, a woman is also entitled to the grantEof child care leave for taking care of her two eldest survivingchildren whether for rearing or for looking after any of their needs,such as education, sickness and the like. Child care leave underRule 43-C can be availed of not only at the point when the child isborn but at any subsequent period as is evident from theFillustrative causes which are adverted to in the provisions. Bothconstitute distinct entitlements. [Paras 22, 23][572-D; 573-G-H;574-A-B]

1.3 The facts of the present case indicate that the spouseof the appellant had a prior marriage which had ended as a resultGof the death of his wife after which the appellant married him.The fact that the appellants spouse had two biological childrenfrom his first marriage would not impinge upon the entitlementof the appellant to avail maternity leave for her sole biologicalchild. The fact that she was granted child care leave in respect ofthe two biological children born to her spouse from an earlierH

marriage may be a matter on which a compassionate view wastaken by the authorities at the relevant time. Gendered rolesassigned to women and societal expectations mean that womenare always pressed upon to take a disproportionate burden ofchildcare work. According to a “time-use survey conducted bythe Organisation for Economic Co-operation and Development(OECD), women in India currently spend upto 352 minutes perday on unpaid work, 577% more than the time spent by men.12Time spent in unpaid work includes childcare. In this context,the support of care work through benefits such as maternity leave,paternity leave, or child care leave (availed by both parents) bythe state and other employers is essential. Although certainprovisions of the Rules of 1972 have enabled women to enterthe paid workforce, women continue to bear the primaryresponsibility for childcare. The grant of child care leave to theappellant cannot be used to disentitle her to maternity leave underRule 43 of the Rules of 1972. [Para 24][574-C-F]

1.4 Unless a purposive interpretation were to be adoptedin the present case, the object and intent of the grant of maternityleave would simply be defeated. The grant of maternity leaveunder Rules of 1972 is intended to facilitate the continuance ofwomen in the workplace. It is a harsh reality that but for suchprovisions, many women would be compelled by socialcircumstances to give up work on the birth of a child, if they arenot granted leave and other facilitative measures. No employercan perceive child birth as detracting from the purpose ofemployment. Child birth has to be construed in the context ofemployment as a natural incident of life and hence, the provisionsfor maternity leave must be construed in that perspective. [Para25][574-G; 575-A]

1.5 The predominant understanding of the concept of a“family” both in the law and in society is that it consists of asingle, unchanging unit with a mother and a father (who remainconstant over time) and their children. This assumption ignoresboth, the many circumstances which may lead to a change in ones familial structure, and the fact that many families do not conformto this expectation to begin with. Familial relationships may take A

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Athe form of domestic, unmarried partnerships or queerrelationships. A household may be a single parent household forany number of reasons, including the death of a spouse,separation, or divorce. Similarly, the guardians and caretakers(who traditionally occupy the roles of the “mother” and the“father”) of children may change with remarriage, adoption, orBfostering. These manifestations of love and of families may notbe typical but they are as real as their traditional counterparts.Such atypical manifestations of the family unit are equallydeserving not only of protection under law but also of the benefitsavailable under social welfare legislation. The black letter of theClaw must not be relied upon to disadvantage families which aredifferent from traditional ones. The same holds true for womenwho take on the role of motherhood in ways that may not find aplace in the popular imagination. [Para 26][575-B-E]

1.6 The structure of the appellants family changed whenDshe took on a parental role with respect to her spouse s biologicalchildren from his previous marriage. When the appellant appliedto PGIMER for maternity leave, PGIMER was faced with factsthat the law may not have envisaged or adequately accounted for.When courts are confronted with such situations, they would dowell to attempt to give effect to the purpose of the law in questionErather than to prevent its application. [Para 27][575-F]

1.7 The appellant was entitled to the grant of maternityleave. The communication of the third respondent denying herthe entitlement was contrary to the provisions of Rule 43. Theimpugned judgment of the High Court and the judgment of theFCAT is set aside. The appellant shall be granted maternity leaveunder Rule 43. [Para 28][575-G-H; 576-A]

KH Nazar v. Mathew K Jacob (2020) 14 SCC 126 :[2019] 14 SCR 928; Badshah v. Urmila Badshah Godse(2014) 1 SCC 188 : [2013] 10 SCR 259; MunicipalGCorporation of Delhi v. Female Workers (Muster Roll)(2000) 3 SCC 224 : [2000] 2 SCR 171; Justice K.S.Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1: [2017] 10 SCR 569; Suchita Srivastava v. Chandigarh H

Administration (2009) 9 SCC 1 : [2009] 13 SCR 989 –referred to.

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Organisation for Economic Co-operation andDevelopment, ‘Time-Use’ (OECD Stat) <https://stats.oecd.org/Index.aspx? datasetcode = TIME_USE#> accessed 22 August 2022 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5308of 2022.

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From the Judgment and Order dated 16.03.2021 of the High Courtof Punjab and Haryana at Chandigarh in CWP No. 3460 of 2021.

Akshay Verma, Ms. Sushma Verma, Ms. Savita Dhanda, Advs.for the Appellant.

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Vikramjit Banerjee, ASG, Gurmeet Singh Makker, Ms. AlkaAgarwal, Anmol Chandan, Anukalp Jain, Amit Sharma, Anirudh Sharma,Sudarshan Rajan, Mahesh Kumar, Ramesh Rawat, Hitain Bajaj, RohitBhardwaj, Ashutosh Gupta, Advs. for the Respondents.

The Judgment of the Court was delivered by F

DR DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from a judgment dated 16 March 2021 of aDivision Bench of the High Court of Punjab and Haryana.

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3. The appellant was, at the material time, working on the post ofNursing Officer in the Post Graduate Institute of Medical Educationand Research[1] at Chandigarh since her appointment on 25 November2005. On 18 February 2014, the appellant married Amir Singh. The spouse 1 “PGIMER”

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Aof the appellant was married before his marriage to the appellant, but hisformer wife passed away on 16 February 2013. From his first marriage,he has two children, a male child born on 1 February 2001 and a femalechild born on 3 March 2005. The appellant filed an application on 4 May2015, requesting the authorities at PGIMER to enter the names of thetwo children born from the first marriage of her spouse in the officialBservice record.

4. The appellant had her first biological child on 4 June 2019 fromher marriage. On 6 June 2019, she applied for maternity leave for theperiod from 27 June 2019 to 23 December 2019 in terms of Rule 43 ofthe Central Civil Services (Leave) Rules 1972.[2] The authorities atCPGIMER sought a clarification on 3 July 2019 regarding the fact thatthe spouse of the appellant had two surviving children from his firstmarriage. The appellant submitted a detailed reply on 24 July 2019.The request of the appellant for the grant of maternity leave was rejectedon 3 September 2019 on the ground that she had two surviving childrenDand had availed of child care leave earlier for the two children born fromthe first marriage of her spouse. Consequently, maternity leave for thechild borne by her, considered as her third child, was found to beinadmissible in terms of the Rules of 1972. By an office order dated 21January 2020, her leave for the period from 30 May 2019 to 3 June 2019;4 June 2019 to 27 October 2019; 27 October 2019 to 6 November 2019;Eand 7 November 2019 to 31 November 2019 was treated as earnedleave, medical leave, half pay leave, and extraordinary leave respectively.The period of extraordinary leave was not counted towards incrementsin the scale of Rs. 9300-34800 under FR-26(ii) of the Fundamental Rules,Volume-I.F

5. Aggrieved by the decisions dated 3 September 2019 and 21January 2020 of the administrative authorities at PGIMER, the appellantmoved the Central Administrative Tribunal[3] at its Chandigarh Bench inOA No 155 of 2020. By a judgment dated 29 January 2021, the CentralAdministrative Tribunal dismissed the OA, holding:G“10. [ ] It is, thus, clear that the maternity leave can be granted toa female government servant only if she has less than two survivingchildren. As per her own request, the applicant has already shownher two children from the first marriage of her husband as her 2 “Rules of 1972”H3 “CAT”

children and she has been availing benefit in their respect onmany occasions earlier and subsequent to her marriage. Therefore,for all practical purposes and as far as respondent department isconcerned, she has already two surviving children and she is takingbenefit for them from the respondent department by way of ChildCare Leave and other benefits.

11. In view of the above, any child born to her now will be consideredonly as a third child and cannot be taken as the first child. It maybe true that Viren Partap Singh is first child born to her after herfirst pregnancy with her husband. But, of her own choice, theapplicant has already got the names of other two children fromher husband’s first marriage entered in the record of the officeas her children and is availing benefits on their behalf includingChild Care Leave. The Rule position is clear and for all practicalpurposes, the applicant has two surviving children. As such, anychild born to her now can only be considered as third child.

12. In view of the above, the decision of the respondents to rejecther maternity leave is correct even though it may be first maternityfor the applicant herself”

6. The appellant moved the High Court in a writ petition[4] underArticle 226 of the Constitution, calling into question the judgment of theTribunal, resulting in the impugned judgment. By the impugned judgmentand order dated 16 March 2021, the High Court dismissed the petitionon the ground that there is no perversity or illegality in the judgment ofthe CAT. The High Court held:

“12. A bare perusal of the aforesaid rule would reveal thatmaternity leave can be granted to a female Government servantonly if she has less than two surviving children. Though, the petitioneris not the biological mother of the two children born from the firstwedlock of her husband, she cannot deny the fact that now she isthe mother of them also after having married to Amar Singh. Inthis way, the petitioner has already two surviving children. Notonly this, she has also availed CCL for them from the respondentDepartment. In this view of the matter, any child born to her is tobe considered as a third child. We are of the considered view thatthe CAT has rightly observed in the impugned order that “....for A

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all practical purposes, the applicant has two surviving children.As such, any child born to her now can only be considered as athird child.”

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7. Child care leave is provided under Rule 43-C. Rule 43-C isextracted below:B

“43-(C). Child Care Leave

(1) A woman Government servant having minor children belowthe age of eighteen years and who has no earned leave at hercredit, may be granted child care leave by an authority competentto grant leave, for a maximum period of two years, i.e., 730 daysduring the entire service for taking care of upto two childrenwhether for rearing or to look after any of their needs likeexamination, sickness, etc.

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(2) During the period of child care leave, she shall be paid leavesalary equal to the pay drawn immediately before proceeding onDleave.

(3) Child care leave may be combined with Leave of any otherkind.

(4) Notwithstanding the requirement of production of medicalcertificate contained in sub-rule (1) of rule 30 or sub-rule (1) ofErule 31, leave of the kind due and admissible (including commutedleave not exceeding 60 days and leave not due) upto a maximumof one year, if applied for, be granted in continuation with childcare leave granted under sub-rule (1).

(5) Child care leave may be availed of in more than one spell.

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(6) Child care leave shall not be debited against the leave account.”

8. The High Court opined that since the appellant had availed ofchild care leave in respect of the biological children of her spouse bornfrom his first marriage, she would be disentitled to the grant of maternityGleave. After her marriage to Amar Singh, she was considered to havetwo surviving children. The High Court found that she therefore did notmeet the requirement of sub-rule (1) of Rule 43 of having less than twosurviving children for the purpose of being granted maternity leave.

9. Notice was issued in these proceedings on 1 July 2021. InHpursuance of the order issuing notice, the respondents have enteredappearance and have filed a counter affidavit.

10. We have heard Mr Akshay Verma, learned counsel appearingon behalf of the appellant and Mr Sudarshan Rajan, learned counselappearing for the second, third and fourth respondents.

11. The case of the appellant is that the maternity leave was soughtby her on the birth of her first biological child and the fact that there aretwo children of her spouse born from an earlier marriage would notdisentitle her under Rule 43 of the Rules of 1972. Counsel for the appellantsubmitted that though the appellant had availed of child care leave inrespect of her step children, this leave is distinct from maternity leave.

12. The contention of the respondents is that having taken thebenefit of child care leave in respect of the two children born to thespouse of the appellant from his first marriage, the appellant was notentitled to maternity leave in respect of the birth of her own biologicalchild. The appellant was, in the submission of the respondents, disentitledto maternity leave on the ground that she had two surviving children, interms of Rule 43 of the Rules of 1972.

13. The significant issue which falls for determination in the appealturns on the interpretation of Rule 43 of the Rules of 1972. The CentralCivil Services (Leave) Rules 1972 have been framed under the provisoto Article 309 of the Constitution. Rule 43 is extracted below:

“43. Maternity Leave

(1) A female Government servant (including an apprentice) withless than two surviving children may be granted maternity leaveby an authority competent to grant leave for a period of (180 days)from the date of its commencement.

(2) During such period, she shall be paid leave salary equal to thepay drawn immediately before proceeding on leave.

NOTE:- In the case of a person to whom Employees StateInsurance Act, 1948 (34 of 1948), applies, the amount of leavesalary payable under this rule shall be reduced by the amount ofbenefit payable under the said Act for the corresponding period.

(3) Maternity leave not exceeding 45 days may also be granted toa female Government servant (irrespective of the number ofsurviving children) during the entire service of that femaleGovernment servant in case of miscarriage including abortion onproduction of medical certificate as laid down in Rule 19:

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AProvided that the maternity leave granted and availed of beforethe commencement of the CCS (Leave) Amendment Rules, 1995,shall not be taken into account for the purpose of this sub- rule.

(4) (a) Maternity leave may be combined with leave of any otherkind.

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(b) Notwithstanding the requirement of production of medicalcertificate contained in sub-rule (1) of Rule 30 or sub-rule (1) ofRule 31, leave of the kind due and admissible (including commutedleave for a period not exceeding 60 days and leave not due) up toa maximum of two years may, if applied for, be granted inCcontinuation of maternity leave granted under sub-rule (1).

(5) Maternity leave shall not be debited against the leave account.”

14. The marginal note to Rule 43 is titled „maternity leave. Sub-rule (1) stipulates that a female government servant with less than twosurviving children would be granted maternity leave for a period of 180Ddays from the date of its commencement. Sub-rule (2) stipulates thatduring the period of maternity leave, the employee is entitled to leavesalary equal to the pay drawn immediately before proceeding on leave.Sub- rule (3) stipulates that maternity leave not exceeding 45 days mayalso be granted to a female government servant, irrespective of theEnumber of surviving children, during the entire service in case of amiscarriage including an abortion on production of a medical certificate.Sub-rule (4) stipulates that maternity leave is capable of being combinedwith leave of any other kind.

15. The provisions of Rule 43(1) must be imbued with a purposiveconstruction. In KH Nazar v. Mathew K Jacob,[5] this Court noted thatFbeneficial legislation must be given a liberal approach:

“11. Provisions of a beneficial legislation have to be construedwith a purpose-oriented approach. The Act should receive a liberalconstruction to promote its objects. Also, literal construction ofthe provisions of a beneficial legislation has to be avoided. It is theGcourt’s duty to discern the intention of the legislature in making thelaw. Once such an intention is ascertained, the statute shouldreceive a purposeful or functional interpretation

12. In the words of O. Chinnappa Reddy, J., the principles ofstatutory construction of beneficial legislation are as follows:(Workmen case, SCC p. 76, para 4)

“4. The principles of statutory construction are well settled.Words occurring in statutes of liberal import such as ‘socialwelfare legislation and human rights’ legislation are not to beput in Procrustean beds or shrunk to Lilliputian dimensions. Inconstruing these legislations the imposture of literal constructionmust be avoided and the prodigality of its misapplication mustbe recognised and reduced. Judges ought to be more concernedwith the “colour”, the “content” and the “context” of suchstatutes (we have borrowed the words from Lord Wilberforce’sopinion in Prenn v. Simmonds [Prenn v. Simmonds, (1971) 1 WLR1381 : (1971) 3 All ER 237 (HL)] ).

In the same opinion Lord Wilberforce pointed out that law isnot to be left behind in some island of literal interpretation butis to enquire beyond the language, unisolated from the matrixof facts in which they are set; the law is not to be interpretedpurely on internal linguistic considerations. In one of the casescited before us, that is, Surendra Kumar Verma v. CentralGovt. Industrial Tribunal- cum-Labour Court , we hadoccasion to say : (Surendra Kumar Verma case, SCC p. 447,para 6)

‘6. … Semantic luxuries are misplaced in the interpretation of“bread and butter” statutes. Welfare statutes must, of necessity,receive a broad interpretation. Where legislation is designed togive relief against certain kinds of mischief, the court is not tomake inroads by making etymological excursions.’’’

13. While interpreting a statute, the problem or mischief that thestatute was designed to remedy should first be identified and thena construction that suppresses the problem and advances theremedy should be adopted.”

16. In Badshah v. Urmila Badshah Godse,[6] a two-judge Benchof this Court comprising AK Sikri and Ranjana Desai, JJ. ruled that A

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Acourts must bridge the gap between law and society through the use ofpurposive interpretation, where applicable:

“13.3. Thirdly, in such cases, purposive interpretation needs tobe given to the provisions of Section 125 CrPC. While dealingwith the application of a destitute wife or hapless children or parentsunder this provision, the Court is dealing with the marginalisedsections of the society. The purpose is to achieve “social justice”which is the constitutional vision, enshrined in the Preamble of theConstitution of India. The Preamble to the Constitution of Indiaclearly signals that we have chosen the democratic path under therule of law to achieve the goal of securing for all its citizens, justice,liberty, equality and fraternity. It specifically highlights achievingtheir social justice. Therefore, it becomes the bounden dutyof the courts to advance the cause of the social justice. Whilegiving interpretation to a particular provision, the court issupposed to bridge the gap between the law and society.

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14. Of late, in this very direction, it is emphasised that the courtshave to adopt different approaches in “social justice adjudication”,which is also known as “social context adjudication” as mere“adversarial approach” may not be very appropriate. There arenumber of social justice legislations giving special protection andbenefits to vulnerable groups in the society. Prof. Madhava Menondescribes it eloquently:

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“It is, therefore, respectfully submitted that ‘social contextjudging’ is essentially the application of equalityjurisprudence as evolved by Parliament and the SupremeCourt in myriad situations presented before courts whereunequal parties are pitted in adversarial proceedings andwhere courts are called upon to dispense equal justice. Apartfrom the social-economic inequalities accentuating the disabilitiesof the poor in an unequal fight, the adversarial process itselfoperates to the disadvantage of the weaker party. In such asituation, the Judge has to be not only sensitive to the inequalitiesof parties involved but also positively inclined to the weaker partyif the imbalance were not to result in miscarriage of justice. Thisresult is achieved by what we call social context judging or socialjustice adjudication.” [Keynote address on “Legal Education inSocial Context” delivered at National Law University, Jodhpur F

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on October 12, 2005, available on http://web.archive.org/web/20061210031743/http:/www.nlujodhp ur.ac.in/ceireports.htm [lastvisited on 25-12-2013]]

…

16. The law regulates relationships between people. It prescribespatterns of behaviour. It reflects the values of society. The roleof the court is to understand the purpose of law in societyand to help the law achieve its purpose. But the law of asociety is a living organism. It is based on a given factualand social reality that is constantly changing. Sometimeschange in law precedes societal change and is even intendedto stimulate it. In most cases, however, a change in law isthe result of a change in social reality. Indeed, when socialreality changes, the law must change too. Just as change insocial reality is the law of life, responsiveness to change in socialreality is the life of the law. It can be said that the history of lawis the history of adapting the law to society’s changing needs. Inboth constitutional and statutory interpretation, the courtis supposed to exercise discretion in determining theproper relationship between the subjective and objectivepurposes of the law.”

(emphasis supplied)

17. For the purpose of adopting an approach which furtherslegislative policy, it would be appropriate to derive some guidance fromthe provisions of the Maternity Benefit Act 1961[7] though, it must bestated at the outset that the Act per se has no application to the PGIMERas an establishment. Nonetheless, the provisions of the Act of 1961 areindicative of the object and intent of Parliament in enacting a cognatelegislation on the subject.

18. Section 3(c) of the Maternity Benefit Act of 1961 defines theexpression „delivery to mean the birth of a child. Section 5 provides forthe right to payment of maternity benefit. Section 5 is extracted in itsentirety below:

“5. Right to payment of maternity benefit.– (1) Subject to theprovisions of this Act, every woman shall be entitled to, and her 7 ‘‘Act of 1961’’

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employer shall be liable for, the payment of maternity benefit atthe rate of the average daily wage for the period of her actualabsence, that is to say, the period immediately preceding the dayof her delivery, the actual day of her delivery and any periodimmediately following that day.

Explanation.– For the purpose of this sub-section, the averagedaily wage means the average of the woman s wages payable toher for the days on which she has worked during the period ofthree calendar months immediately preceding the date from whichshe absents herself on account of maternity, the minimum rate ofwage fixed or revised under the Minimum Wages Act, 1948 (11of 1948), or ten rupees, whichever is the highest.

(2) No woman shall be entitled to maternity benefit unless she hasactually worked in an establishment of the employer from whomshe claims maternity benefit, for a period of not less than eightydays in the twelve months immediately preceding the date of herexpected delivery:

Provided that the qualifying period of eighty days aforesaid shallnot apply to a woman who has immigrated into the State of Assamand was pregnant at the time of the immigration.

Explanation.– For the purpose of calculating under the sub- sectionthe days on which a woman has actually worked in theestablishment, the days for which she has been laid-off or wason holidays declared under any law for the time being in force tobe holidays with wages, during the period of twelve monthsimmediately preceding the date of her expected delivery shall betaken into account.

(3) The maximum period for which any woman shall be entitledto maternity benefit shall be twenty-six weeks of which not morethan eight weeks shall precede the date of her expected delivery:

Provided that the maximum period entitled to maternity benefit bya woman having two or more than two surviving children shall betwelve weeks of which not more than six weeks shall precedethe date of her expected delivery:

Provided further that where a woman dies during this period, thematernity benefit shall be payable only for the days up to andincluding the day of her death:

Provided also that where a woman, having been delivered of achild, dies during her delivery or during the period immediatelyfollowing the date of her delivery for which she is entitled for thematernity benefit, leaving behind in either case the child, theemployer shall be liable for the maternity benefit for that entireperiod but if the child also dies during the said period, then, forthe days up to and including the date of the death of the child.

(4) A woman who legally adopts a child below the age of threemonths or a commissioning mother shall be entitled to maternitybenefit for a period of twelve weeks from the date the child ishanded over to the adopting mother or the commissioning mother,as the case may be.

(5) In case where the nature of work assigned to a woman is ofsuch nature that she may work from home, the employer mayallow her to do so after availing of the maternity benefit for suchperiod and on such conditions as the employer and the womanmay mutually agree.”

19. Sub-section (1) of Section 5 confers an entitlement on a womanto the payment of maternity benefits at a stipulated rate for the period ofher actual absence beginning from the period immediately preceding theday of her delivery, the actual day of her delivery and any periodimmediately following that day. Sub-section (3) specifies the maximumperiod for which any woman shall be entitled to maternity benefit. Theseprovisions have been made by Parliament to ensure that the absence ofa woman away from the place of work occasioned by the delivery of achild does not hinder her entitlement to receive wages for that period orfor that matter for the period during which she should be granted leave inorder to look after her child after the birth takes place.

20. The Act of 1961 was enacted to secure women s right topregnancy and maternity leave and to afford women with as muchflexibility as possible to live an autonomous life, both as a mother and asa worker, if they so desire. In Municipal Corporation of Delhi v.Female Workers (Muster Roll),[8] a two-judge Bench of this Courtplaced reliance on the obligations under Articles 14, 15, 39, 42 and 43 ofthe Constitution, and India s international obligations under the UniversalDeclaration of Human Rights 1948[9] and Article 11 of the Convention on 8 2000 (3) SCC 224

9 “UDHR”

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Athe Elimination of All Forms of Discrimination Against Women[10] to extendbenefits under the Act of 1961 to workers engaged on a casual basis oron muster roll on daily wages by the Municipal Corporation of Delhi.The Central Civil Services (Leave) Rules 1972, it is well to bear in mind,are also formulated to entrench and enhance the objects of Article 15 ofthe Constitution and other relevant constitutional rights and protections.B

21. Under Article 15(3) of the Constitution, the State is empoweredto enact beneficial provisions for advancing the interests of women.The right to reproduction and child rearing has been recognized as animportant facet of a person s right to privacy, dignity and bodily integrityunder Article 21.[11] Article 42 enjoins the State to make provisions forCsecuring just and humane conditions of work and for maternity relief.

22. In this context, regard may also be had to several internationalconventions of the United Nations that India has ratified. Article 25(2)of the UDHR provides that motherhood and childhood are entitled tospecial care and assistance. Article 11(2)(b) of CEDAW requires statesD“to introduce maternity leave with pay or comparable social benefits.”The relevant provision of Article 11 of CEDAW states that:

“Article 11:

1. States Parties shall take all appropriate measures to eliminateEdiscrimination against women in the field of employment in orderto ensure, on a basis of equality of men and women, the samerights, in particular:

(a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including theFapplication of the same criteria for selection in matters ofemployment;

(c) The right to free choice of profession and employment, theright to promotion, job security and all benefits and conditions ofservice and the right to receive vocational training and retraining,Gincluding apprenticeships, advanced vocational training andrecurrent training; 10 “CEDAW”

11 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; Suchita SrivastavaHv. Chandigarh Administration (2009) 9 SCC 1

(d) The right to equal remuneration, including benefits, and to equaltreatment in respect of work of equal value, as well as equality oftreatment in the evaluation of the quality of work;

(e) The right to social security, particularly in cases of retirement,unemployment, sickness, invalidity and old age and other incapacityto work, as well as the right to paid leave; (f) The right to protection of health and to safety in workingconditions, including the safeguarding of the function ofreproduction.

2. In order to prevent discrimination against women on thegroundsofmarriageormaternityandtoensuretheireffective right to work,States Parties shall take appropriatemeasures:

(a) To prohibit, subject to the imposition of sanctions, dismissal onthe grounds of pregnancy or of maternity leave and discriminationin dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparablesocial benefits without loss of former employment, seniorityorsocialallowances;

(c) To encourage the provision of the necessary supporting socialservices to enable parents to combine family obligations with workresponsibilities and participation in public life, in particular throughpromoting the establishment and development of a network ofchild-care facilities; (d) To provide special protection to women during pregnancy intypes of work proved to be harmful to them.

3. Protective legislation relating to matters covered in this articleshall be reviewed periodically in the light of scientific andtechnological knowledge and shall be revised, repealed or extendedas necessary.”

(emphasis supplied)

23. In alignment with the Constitution as well as the treatiesmentioned above, Rule 43(1) of the Rules of 1972 contemplates thegrant of maternity leave for a period of 180 days. Independent of thegrant of maternity leave, a woman is also entitled to the grant of child A

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Acare leave for taking care of her two eldest surviving children whetherfor rearing or for looking after any of their needs, such as education,sickness and the like. Child care leave under Rule 43-C can be availedof not only at the point when the child is born but at any subsequentperiod as is evident from the illustrative causes which are adverted to inthe provisions, which have been extracted in the earlier part of theBjudgment. Both constitute distinct entitlements.

24. The facts of the present case indicate that the spouse of theappellant had a prior marriage which had ended as a result of the deathof his wife after which the appellant married him. The fact that theappellant s spouse had two biological children from his first marriageCwould not impinge upon the entitlement of the appellant to avail maternityleave for her sole biological child. The fact that she was granted childcare leave in respect of the two biological children born to her spousefrom an earlier marriage may be a matter on which a compassionateview was taken by the authorities at the relevant time. Gendered rolesDassigned to women and societal expectations mean that women are alwayspressed upon to take a disproportionate burden of childcare work.According to a ‘time-use’ survey conducted by the Organisation forEconomic Co-operation and Development (OECD), women in Indiacurrently spend upto 352 minutes per day on unpaid work, 577% morethan the time spent by men.[12] Time spent in unpaid work includesEchildcare. In this context, the support of care work through benefitssuch as maternity leave, paternity leave, or child care leave (availed byboth parents) by the state and other employers is essential. Althoughcertain provisions of the Rules of 1972 have enabled women to enter thepaid workforce, women continue to bear the primary responsibility forFchildcare. The grant of child care leave to the appellant cannot be usedto disentitle her to maternity leave under Rule 43 of the Rules of 1972.

25. Unless a purposive interpretation were to be adopted in thepresent case, the object and intent of the grant of maternity leave wouldsimply be defeated. The grant of maternity leave under Rules of 1972 isGintended to facilitate the continuance of women in the workplace. It is aharsh reality that but for such provisions, many women would becompelled by social circumstances to give up work on the birth of a 12 Organisation for Economic Co-operation and Development, ‘Time-Use’ (OECDStat) <https://stats.oecd.org/Index.aspx?datasetcode=TIME_USE#> accessed 22 AugustH2022

child, if they are not granted leave and other facilitative measures. Noemployer can perceive child birth as detracting from the purpose ofemployment. Child birth has to be construed in the context of employmentas a natural incident of life and hence, the provisions for maternity leavemust be construed in that perspective.

26. The predominant understanding of the concept of a “family”both in the law and in society is that it consists of a single, unchangingunit with a mother and a father (who remain constant over time) andtheir children. This assumption ignores both, the many circumstanceswhich may lead to a change in one s familial structure, and the fact thatmany families do not conform to this expectation to begin with. Familialrelationships may take the form of domestic, unmarried partnerships orqueer relationships. A household may be a single parent household forany number of reasons, including the death of a spouse, separation, ordivorce. Similarly, the guardians and caretakers (who traditionally occupythe roles of the “mother” and the “father”) of children may change withremarriage, adoption, or fostering. These manifestations of love and offamilies may not be typical but they are as real as their traditionalcounterparts. Such atypical manifestations of the family unit are equallydeserving not only of protection under law but also of the benefits availableunder social welfare legislation. The black letter of the law must not berelied upon to disadvantage families which are different from traditionalones. The same undoubtedly holds true for women who take on the roleof motherhood in ways that may not find a place in the popular imagination.

27. The facts of the present case, too, indicate that the structureof the appellant’s family changed when she took on a parental role withrespect to her spouses biological children from his previous marriage.When the appellant applied to PGIMER for maternity leave, PGIMERwas faced with facts that the law may not have envisaged or adequatelyaccounted for. When courts are confronted with such situations, theywould do well to attempt to give effect to the purpose of the law inquestion rather than to prevent its application.

28. For the above reasons, we hold that the appellant was entitledto the grant of maternity leave. The communication of the thirdrespondent denying her the entitlement was contrary to the provisions ofRule 43. We accordingly set aside the impugned judgment of the HighCourt dated 16 March 2021 and the judgment of the CAT dated29 January 2021. The OA filed by the appellant shall in consequence A

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Astand allowed and the appellant shall be granted maternity leave underRule 43 in terms of the present judgment. The benefits which areadmissible to the appellant shall be released to her within a period of twomonths from the date of this order.

29. The appeal is accordingly allowed.B30. Pending applications, if any, stand disposed of.

Nidhi Jain

Appeal allowed.

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