Parenthood as a Shared Responsibility
Parenthood is a shared responsibility and father, and mother are both considered to be an inevitable instrument of partnership. A child born to a family sees the world first through the eyes of his mother and develops his cognitive skills through the vision of his family. Thus, through various conventions and protocols, the right of a women to take a maternity leave has been recognized in and around the world and India being no exception to it, it has rightfully enacted the Maternity Benefits Act, 1961.
However, the Indian society is still oblivious of the notion of parenthood being a shared responsibility and thereby, despite introducing the concept of maternity benefit for the mothers many years back, it still has no existing laws related to Paternity Benefit. India is one of the 90 countries in the world that still doesn’t have any national legislation on Paid Paternity Leave.
In absence of any law regarding paternity leave, there is no guidance to the companies to make any policy on this subject. Only 14% of the Indian companies have policies related to the Paternity Leave.
As per the ILO report titled ‘Maternity and Paternity at Work’, the early interaction of the child with father helps in the development of the child as well as parental skills develop in the father which makes him the active co-parent rather than being just a helper of his female partner. Even the judicial organ of the state through various judicial pronouncements has been reiterating the same.
Existing Law Regarding Paternity Leave in India
Despite there being no specific legislation recognizing the concept of paternity leaves in India, the first law dealing with the paternity leave was introduced in the year 1999 by the Central Government’s notification under Central Civil Services (Leave) Rules, 1972, as per which the government employees are made eligible for the paternity leave of 15 days which can be claimed before or within 6 months of the birth of the child or adoption of the child.
Despite having various provisions regarding paternity leave in India, there exists no central legislation which provides paternity benefit to employees in unorganized as well as private sector. During the discussion regarding the Maternity Benefits (Amendment) Bill, 2016, the Parliament emphasized the need of Paternity Leave to bring both men and women on an equal footing.
In this regard, an attempt was made by the Legislature in the year 2017 when a private member bill titled the Paternity Benefit Bill, 2017 was introduced by Mr. Rajeev Satav. The said bill provided for Paternity Leave of maximum 15 days which can be claimed within three months from the delivery of the child, but the bill has not been passed till date.
Judicial Pronouncements
In recent times, the Indian courts have been seeing an increasing number of cases wherein fathers are requesting paternity leave due to compelling reasons beyond the development of the child. Since no legislation is framed on the issue, people are forced to approach the courts under writ jurisdiction, and a pertinent question thus arises—what can the courts do in such cases?
The stance of the Indian judiciary has been that it has not exercised its judicial discretion in the garb of doing complete justice in many prominent cases, and rather left it to the law-making body to implement any such law, thereby not entering into the legislative domain and violating the doctrine of separation of powers. However, a trend has been observed wherein various High Courts in the country have recognized the importance of providing paternity benefits.
Case: B Sarvanan v. Deputy Inspector General of Police
In this case, the Madras High Court took the lead, wherein a father petitioned the Court seeking paternity leave since his wife was undergoing IVF, a complex procedure requiring extra care and attention. The case highlights the dire need for the man to take care of his wife and the newly born child.
The Court held that a child has a fundamental right to life under Article 21, and this includes not only mere existence but existence with prenatal and postnatal care from both mother and father. Thus, the Court ruled that the right to protection of life for a child culminates in the fundamental human right of the biological/adopting parents seeking maternity/paternity/parental leave. Therefore, refusal of paternity leave is violative of Article 21 of the Constitution.
This case could be a great precedent as it highlights the need for paternity leave in the Indian family system and, having declared paternity leave as a fundamental right, it opens a path for enforcement of the same by approaching the courts.
Case: Chander Mohan Jain v. N.K. Bagrodia Public School & Ors.
In this case, the Indian judiciary upheld the value of paternity leave. A Post Graduate Teacher applied for paternity leave, which was declined by the school on the ground that the school had no policy for paternity leave. The Court held that unaided recognized schools come under the control of the Director of Education as per DSEAR, 1973. Hence, the CCS (Leave Rules), 1972 would be applicable, making the teacher eligible for paternity leave despite the school not having any specific policy.
Case: Virendra Singh v. Delhi Transport Corporation
This case depicts the hesitation in availing paternity leave. The Hon’ble Central Administrative Tribunal held the applicant ineligible for paid paternity leave, stating that it is not obligatory on the private sector to provide such leave.
Why Paternity Leave Matters?
In the 21st century, one of the most significant demographic changes in India has been the shift from a gender-biased to a gender-equal society. Women are working in every sphere and striving to be at par with men. However, their growth is often deterred by responsibilities that arise post-marriage. Predominantly, unpaid care work such as washing, cleaning, cooking, shopping for domestic utilities, and childcare is still done by women along with professional commitments.
This “double burden” phenomenon places women under pressure. When women enter motherhood, the added responsibility of childcare falls upon them alone, since the father’s role as a caretaker is not widely recognized in Indian society. Consequently, the father continues to work, leaving the woman to shoulder all responsibilities. This defeats the objective of maternity leave, which is intended to provide rest to women post-childbirth.
Secondly, research indicates that the Indian family system has seen a paradigm shift from joint families to nuclear families. In joint families, multiple members could support the mother and newborn. However, in nuclear families, the responsibility must be shared by the father, necessitating paternity leave legislation.
Thirdly, providing paternity leave strengthens the father-child bond, which benefits the child’s development. Early involvement of fathers contributes to better health outcomes and enhances the child’s attachment to the father.
Why Less People Take Paternity Leave in India?
In India, the main reason for people’s hesitancy in taking paternity leave is their mindset. The upbringing of the child is still considered as the mother’s responsibility, while the father’s role ends when he brings the money to the house. Further, India is known for the joint family system. In such arrangements, the grandparents also take care of the child, so the father doesn’t feel the need of taking any leave from work for the child’s care.
When a child is born, sometimes the mother thinks of quitting the job to take care of the child. The whole financial responsibility of the home falls on the shoulder of the father, compelling him to work rather than taking any leave which can result in any deduction from his salary.
Case: Virendra Singh vs Delhi Transport Corporation
This case depicts the reason for hesitation in taking paternity leave in an excellent way. In this case, the applicant was held ineligible by the Hon’ble Central Administrative Tribunal for paid paternity leave as it is not obligatory on the private sector to provide paid paternity leave.
Therefore, where there is a choice given to a male to take unpaid paternity leave, the father gives preference to earning on days on which he is eligible to take unpaid paternity leave. Thus, the idea of unpaid maternity is of no help to those male employees who are finding it difficult to fulfil even the basic needs of the family.
Article 42 and Paternity Leave
Article 42 of the Indian Constitution is a part of the Directive Principles of State Policy (DPSP), which says that “The State shall make provision for securing just and humane conditions of work and for maternity relief.”
This article was inserted keeping in mind Article 616 of the Universal Declaration of Human Rights, 1948, which talks about the State Parties’ responsibility to ensure the survival and development of the child. The development of the child can only be ensured by the presence of both the father and mother. However, Article 42 talks only about maternity leave.
The inclusion of maternity leave indicates that our Constitution makers intended to bring women to an equal footing as men and create a gender-neutral society. But not including paternity leave clearly defeats the intention of the Constitution makers.
As Directive Principles were introduced to provide guidance to the government in creating a welfare state, in absence of any provision regarding paternity leave, there is little motivation for enacting such a law. Considering the role a father has in the upbringing of a child and the goal of creating a gender-neutral society, it is important that an amendment should be made and ‘Maternity Relief’ should be replaced with ‘Maternity and Paternity Relief’.
Suggestions
Based on the above analysis, the following suggestions can be implemented by the Government to ensure that the responsibility of shared parenthood and a child’s right to be nurtured by both parents is preserved, protected, and promoted:
- Centralized legislation: There is a need for a centralized law mandating paternity leave. This will ensure that maternity provisions are fully utilized, allowing the mother rest and support, and also enabling the father to bond with the child. The first step would be to amend Article 42 to include paternity relief, reflecting evolving parental responsibilities and promoting gender equality.
- Paid paternity leave: A paid leave of 15 days should be made mandatory after conducting a cost-benefit analysis. This would balance the economic impact with the need for parental involvement.
- Equal application in both sectors: Paternity leave should be extended to both the private and public sectors, similar to maternity benefits. This would truly promote equality and uphold the spirit of the Constitution.
Despite the progressive enactment of the Maternity Benefits Act, 1961, the absence of comprehensive paternity leave legislation highlights a significant gap in the Indian legal framework. The judiciary has started to recognize the necessity of paternity leave through various rulings, indicating growing awareness of shared parental responsibilities.
However, legislative action is imperative to ensure uniformity and enforcement across all sectors. Introducing a central law, promoting shared parenting through societal and organizational changes, and amending Article 42 to include paternity relief are vital steps towards achieving this goal.
Such measures would support the holistic development of children by ensuring the presence of both parents during crucial early years, and also alleviate the double burden often shouldered by working mothers. Ultimately, fostering a culture that values and facilitates the active involvement of fathers in child-rearing will contribute significantly to the creation of a more equitable and progressive society.
References:
- https://ijpsl.in/wp-content/uploads/2021/09/Paternity-Benefit-Leaves-in-India-Need-Cost-and-Gender-Reform_Ananya-Dhanuka-Kashish-Banthia.pdf
- https://timesofindia.indiatimes.com/home/sunday-times/14-percent-indian-companies-have-no-paternity-leave-policies-survey/articleshow/92321403.cms
- https://www.ilo.org/sites/default/files/wcmsp5/groups/public/@dgreports/@dcomm/documents/publication/wcms_242617.pdf
- https://www.scconline.com/blog/post/2023/08/30/refusing-paternity-leave-violates-newborn-child-right-to-life-madras-high-court/
- https://www.jetir.org/papers/JETIREQ06095.pdf
- Virendra Singh vs Delhi Transport Corporation, O.A./1565/2015
- https://remote.com/resources/equitable-paid-parental-leave-policy
