Restoring rights: on the Hamsaanandini Nanduri vs Union Of India case

Courts with a tinge of judicial activism have expansively interpreted the Constitution to secure fresh rights for citizens, over the years. In the latest instance, a view that encompasses evolving social systems, and a keen feminist perspective, taken by the highest court in the land, has recognised maternity leave for working women as a basic human right. The Court ruled that adoptive mothers are entitled to 12 weeks of paid maternity leave, regardless of the child’s age at the time of adoption, thus striking down a previous restriction allowing maternity leave only for women who had applied for adopting children less than three months of age. The judgment, delivered by Justices J.B. Pardiwala and R. Mahadevan, came in response to petitioner Hamsaanandini Nanduri challenging this provision in the Maternity Benefit Act, recently replaced by the Code on Social Security. She also pointed out that the legal process of adoption itself took over three months to be completed. The judges observed that an adoptive mother had the same rights and obligations towards the child as a biological mother. Reading adoption as an ‘expression of reproductive autonomy’, the Court said that the emotional bond with the child has to be consciously nurtured through time, presence and sustained caregiving. “Adoption is an equally valid pathway for the creation of a family. It is not biology that constitutes a family of a mother, father, and children, rather, it is the shared meaning, responsibility, and emotional bonds that sustain such a relationship,” it explained. Maternity benefit is extended to working women during the early phase of motherhood to support them financially and provide economic security without them having to depend on family members. This equally applies to biological and adoptive mothers. Further, the judges urged the government to legally recognise paternity leave as a social security benefit, noting that parenthood is not a solitary function performed by one parent alone.

The judges have, with one judgment, conferred equal rights to adoptive parents, and restored child rearing to a gender-neutral parenting paradigm. The patriarchal enabling system has feminised raising children, leading to it being undervalued or inadequately compensated, if it ever is. Nobel winner Claudia Goldin’s work has identified that the gender pay gap often emerges with the birth of a first child. The top court has given India an opportunity to set right the inadequate laws governing maternity leave in adoption, and to a large extent, the gender imbalance in society. It is the duty now of the state to make sure that this progressive judgment finds effective implementation in every corner of the country.