K. Umadevi vs The Government Of Tamil Nadu

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2526 OF 2025 (ARISING OUT OF SLP (CIVIL) No. 20178 OF 2022)

K. UMADEVI APPELLANT(S) VERSUS

GOVERNMENT OF TAMIL NADU & ORS. RESPONDENT(S)

JUDGMENT

UJJAL BHUYAN, J.

This civil appeal by special leave takes exception to

the judgment and order dated 14.09.2022 passed by the

Division Bench of the High Court of Judicature at Madras (High

Court) in W.A. No. 1442 of 2022.

Signature Not Verified Digitally signed by KAVITA PAHUJA Date: 2025.05.23 17:52:43 IST Reason:

2. By the aforesaid judgment and order dated

14.09.2022 (impugned judgment), Division Bench set aside the

judgment and order dated 25.03.2022 passed by a learned

Single Judge of the High Court in W.P. No. 22075 of 2021 (K.

Umadevi Vs. Government of Tamil Nadu and Others) whereby

direction was issued to the State to sanction maternity leave to

the appellant. By reversing the aforesaid decision, Division

Bench held that appellant was not entitled to the benefit of

maternity leave as claimed by her.

3. Relevant facts may be briefly noted.

4. Appellant married A. Suresh in the year 2006. From

the said wedlock, two children were born: first one in 2007 and

the second one in 2011. She entered government service in

December, 2012 as English Teacher in Government Higher

Secondary School, P. Gollapatti, Dharmapuri District in the

State of Tamil Nadu. Marriage between the two was dissolved in

the year 2017. It is stated that the two children born out of the

said wedlock are in the custody of the former husband.

2 4.1. On 12.09.2018, appellant married M. Rajkumar. Due

to conceivement from her second marriage, appellant applied

for grant of maternity leave to the authorities for the period from

17.08.2021 to 13.05.2022 (nine months) which was inclusive of

both pre-and-post-natal periods.

4.2. The third respondent vide order dated 28.08.2021

rejected the prayer of the appellant. It was stated that as

per Fundamental Rule (FR) 101(a) which is applicable to state

government employees of Tamil Nadu, maternity leave is

available to women state government employees having less

than two surviving children. There is no provision for grant of

maternity leave for the third child on account of appellant’s re-

marriage.

4.3. Aggrieved by rejection of her request for grant of

maternity leave, appellant preferred a writ petition before the

High Court which was registered as W.P. No. 22075 of 2021. A

learned Single Judge of the High Court vide the judgment and

order dated 25.03.2022 held that appellant was entitled to grant

of maternity benefit. Therefore, rejection of her claim for grant

3 of such benefit was illegal. As such, order dated 28.08.2021 was

set aside. Respondents were directed to sanction maternity

leave to the appellant as admissible in terms of the latest

G.O.Ms. No. 84 of the Personnel and Administrative Reforms

(FR-III) Department dated 23.08.2021. Consequential decision

was directed to be taken within a period of two weeks from the

date of receipt of a copy of the said judgment. Writ petition was

accordingly allowed.

4.4. Government of Tamil Nadu and its officers filed intra-

court appeal being W.A. No. 1442 of 2022. A Division Bench of

the High Court vide the impugned judgment and order dated

14.09.2022 found the judgment of the learned Single Judge to

be unsustainable. Division Bench held that the appellant was

not entitled to maternity relief as claimed by her. Accordingly,

the judgment and order of the learned Single Judge dated

25.03.2022 has been set aside. Consequently, the writ appeal

has been allowed.

5. This came to be assailed before this Court in the

related special leave petition. Notice was issued by this Court

4 on 28.11.2022. In the hearing held on 11.02.2025, leave was

granted.

6. Learned counsel for the appellant submits that the

Division Bench was not at all justified in reversing the decision

of the learned Single Judge. Division Bench erred in holding

that maternity benefit could not be provided to the appellant.

Prior to her entry into service, she had begotten two children

from her first marriage but their custody is with the father.

Conceivement of a child out of her re-marriage which, in fact, is

her first child from the present wedlock cannot be treated as

her third child, thus, disentitling her from availing the benefit

of maternity leave.

6.1. Learned counsel submits that the issue raised in this

case is squarely covered by the decision of this Court in Deepika

Singh Vs. Central Administrative Tribunal1. However, the

Division Bench misdirected itself in observing that the said

decision is not applicable to the facts of this case; rather

1 (2023) 13 SCC 681

5 supports the case of the respondents. He submits that the

decision of this Court in Deepika Singh (supra) is squarely

applicable to the facts of this case. Division Bench of the High

Court is bound by the dictum of law laid down in Deepika Singh

(supra). To that extent, impugned judgment and order suffers

from perversity.

6.2. Learned counsel further submits that view of the

Division Bench that grant of maternity leave is not a

fundamental right is totally unsustainable. Right to have

maternity leave is a facet of reproductive right of a woman which

is traceable to Article 21 of the Constitution of India, he

submits.

6.3. He further submits that though the Maternity Benefit

Act, 1961 may not be directly applicable to the state government

employees, nonetheless for the purpose of adopting an

approach which would further the legislative intent, certainly

guidance can be derived from the provisions of the Maternity

Benefit Act, 1961 (referred to hereinafter as the ‘Maternity

Benefit Act’).

6 6.4. In any view of the matter, he submits that view taken

by the Division Bench cannot be sustained. Learned Single

Judge was justified in holding that appellant is entitled to

maternity leave. Therefore, the impugned judgment should be

set aside and direction be issued to the respondents to grant

maternity leave to the appellant or regularize any leave taken by

the appellant relatable to her pregnancy as maternity leave of

the appellant.

7. Per contra, learned counsel for the respondents

submits that the entire object of maternity benefit is to protect

the dignity of motherhood by providing complete care to a

woman employee and her children when she is unable to

perform her duty on account of her pregnancy. By extending

such benefit, the State has made an attempt to provide the

women employees with a level playing field.

7.1. He, however, submits that the said policy is subject

to fiscal responsibility and human resources management. Any

deviation from the established policy of not extending the

benefit of maternity leave to women employees having more

7 than two children would create precedents that could

potentially overwhelm the exchequer and impact administrative

efficacy. Even in Deepika Singh (supra), this Court highlighted

that statutory rights and service conditions must align.

Therefore, personal circumstances cannot override established

policy, especially where fiscal implications are significant.

7.2. He also submits that it is the policy of the State to

espouse the cause of small family which is in sync with the

policy of Government of India on population control. If the

reliefs sought for by the appellant is granted, it would amount

to incentivizing breach of population control norms and may

have severe and adverse impact on government’s policy of

managing small family norms as a population control measure.

7.3. Learned counsel has referred to FR 101(a) and

submits that the same bars grant of maternity benefit beyond

the second child. Permanent married women government

servants and non-permanent married women government

servants may be granted maternity leave with less than two

surviving children or with two surviving children born as twins

8 in the first delivery. Insofar the present case is concerned,

appellant already has two children from her first marriage.

Therefore, she is not entitled to maternity benefit for the third

child. That apart, provisions of the Maternity Benefit Act are

not applicable to state government employees like the appellant.

However, benefits extended to government employees of Tamil

Nadu as social welfare measures are more beneficial than under

the Maternity Benefit Act.

7.4. Learned counsel submits that appeal of the appellant

is without any merit and, therefore, the same is liable to be

dismissed.

8. We have considered the rival submissions of the

learned counsel representing the parties.

9. Let us first deal with the order dated 28.08.2021

passed by the third respondent under the heading: Proceeding

of Dharmapuri District Chief Educational Officer. By the

aforesaid order, request of the appellant for maternity leave was

rejected on the ground that there is no provision in the Tamil

9 Nadu Fundamental Rules for grant of maternity leave for third

child through re-marriage. Order dated 28.08.2021 reads thus:

On the above subject matter, the letter in the reference cited was received on 18.08.2021 in this office. Smt. K. Umadevi had two children by her first marriage. After getting divorced for personal reason, she remarried and through remarriage she has now applied for maternity leave for the third child from 17.08.2021.

Since as per Rule 101 (a) of the Tamil Nadu Fundamental Rules, maternity leave can be granted to a woman government servant with less than two living children only, the request of the individual to sanction maternity leave to her third child may be rejected by informing that there is no provision in the Tamil Nadu Fundamental rules for grant of maternity leave for third child through remarriage.

10. When this was challenged before the High Court,

learned Single Judge referred to various case laws and also

relied upon the Maternity Benefit Act and held that provisions

of the Maternity Benefit Act have overriding effect on any other

law inconsistent therewith. It was held that the rule providing

cap on the number of children for entitlement of maternity

benefit is repugnant to the Maternity Benefit Act which is a

10 central enactment. Further, two surviving children must mean

children in lawful custody of the mother. Appellant was not

having the custody of children born from the first wedlock. A

semantic construct of the expression ‘having surviving children’

must mean that the woman government employee seeking

maternity benefit should have custody of the children. The

thrust should be on grant of the benefit by adopting a liberal

interpretation. Learned Single Judge also noted that the State

Government had issued G.O.Ms. No. 84 dated 23.08.2021

enhancing maternity leave from 9 months to 12 months

underlying the importance of maternity leave. Therefore,

learned Single Judge concluded that rejection of the claim of the

appellant for maternity leave was wholly unjustified. Vide the

judgment and order of the learned Single Judge dated

25.03.2022, order dated 28.08.2021 was set aside.

Respondents were directed to sanction maternity leave to the

appellant for the period from 11.10.2021 to 10.10.2022 as

admissible in terms of the latest G.O.Ms. No. 84 dated

23.08.2021.

11

11. When the aforesaid judgment and order of the

learned Single Judge was assailed in intra-court appeal,

Division Bench noted that insofar policy of the State is

concerned it restricts benefit of maternity leave to two children.

Therefore, appellant was not entitled to benefit of maternity

leave for the third child. Grant of maternity leave is not a

fundamental right. It is either a statutory right or a right which

flows from the conditions of service. Insofar the decision of this

Court in Deepika Singh (supra) is concerned, Division Bench

observed that the said decision supports the case of the State,

particularly paragraph 17 thereof. In the circumstances,

Division Bench vide the impugned judgment held that appellant

was not entitled to the relief as claimed by her. Consequently,

while allowing the writ appeal, judgment and order of the

learned Single Judge has been set aside.

12. We need to examine the correctness or otherwise of

the decision of the Division Bench in the light of constitutional

and statutory framework as well as in the backdrop of

international developments.

12

13. Article 21 of the Constitution of India though at first

blush appears to be a colourless article, it is a potent provision

pregnant with wide width and scope having received extensive

and liberal construction at the hands of this Court. Article 21

reads thus:

21. Protection of life and personal liberty. – No person shall be deprived of his life or personal liberty except according to procedure established by law.

13.1. By judicial interpretation, it has been held that life

under Article 21 means life in its fullest sense; all that which

makes life more meaningful, worth living like a human being.

Right to life includes all the finer graces of human civilization,

thus rendering this fundamental right a repository of various

human rights. Right to life also includes the right to health.

Right to live with human dignity and the right to privacy are now

acknowledged facets of Article 21.

14. Article 42 of the Constitution of India which is one of

the directive principles of State policy mandates that the State

13 shall make provisions for securing just and humane conditions

of work and for maternity relief. Article 42 is as follows:

42. Provision for just and humane conditions of work and maternity relief. – The State shall make provision for securing just and humane conditions of work and for maternity relief.

15. Another directive principle is contained in Article 51

of the Constitution of India. Amongst others, it says through

Article 51(c) that the State shall endeavour to foster respect for

international law and treaty obligations in the dealings of

organized people with one another.

16. We may now refer to FR 101(a) as applicable to the

State of Tamil Nadu. For ready reference, the same is extracted

hereunder:

Rule 101 (a) - maternity leave to female Government servants.

Instructions under Rule 101 (a) – Maternity leave.

1. (i) A competent authority may grant maternity leave on full pay to permanent married women Government servants and to non-permanent married women Government servants, who are appointed on regular capacity, for a period not exceeding 365 days,

14 which may spread over from the pre-confinement rest to post confinement recuperation at the option of the Government servant. Non-permanent married women Government servants, who are appointed on regular capacity and join duty after delivery shall also be granted maternity leave for the remaining period of 365 days after deducting the number of days from the date of delivery to the date of joining in Government service (both days inclusive) for the post confinement recuperation.

(ii) Non-permanent married women Government servants, who are appointed under the emergency provisions of the relevant service rules should take for maternity purposes, the earned leave for which they may be eligible. If, however, such a Government servant is not eligible for earned leave or if the leave to her credit is less than 365 days, maternity leave may be granted for a period not exceeding 365 days or for the period that falls short of 365 days, as the case may be. Non-permanent married women Government servants employed under the emergency provisions should have completed one year of continuous service including leave periods, if any, to become eligible for the grant of maternity leave.

Provided that the maternity leave referred in (i) or

(ii) above shall be granted to a married woman Government servant with less than two surviving children.

15 Provided further that in the case of a woman Government servant with two surviving children born as twins in the first delivery, maternity leave shall be granted for one more delivery.

17. As per the first proviso to clause (ii) of FR 101(a),

maternity leave referred to clauses (i) or (ii) shall be granted to

a married woman Government servant with less than two

surviving children. The second proviso says that in the case of

a woman Government servant with two surviving children born

as twins in the first delivery, maternity leave shall be granted

for one more delivery.

18. Though provisions of the Maternity Benefit Act per se

are not applicable to the State Government employees,

nonetheless, we may make a reference to certain relevant

provisions thereof for useful guidance. Section 5 of the

Maternity Benefit Act is as under:

5. Right to payment of maternity benefit.—(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period

16 immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.

Explanation.—For the purpose of this sub-section, ‘the average daily wage’ means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948), or ten rupees, whichever is the highest.

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery:

Provided that the qualifying period of eighty days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.

Explanation.—For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages, during

17 the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

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

Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery :

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

Provided also that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery, for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the 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 three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the

18 date the child is handed 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 of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.

19. A careful perusal of the above provision would reveal

that grant of maternity benefit is per se not denied to a woman

employee having more than two children. Following amendment

in the year 2017, a restriction has been introduced in Section 5

by inserting a proviso under sub-section (3) as to the

entitlement of the period of maternity leave. A woman employee

having less than two surviving children is entitled to a

maximum period of benefit i.e. 26 weeks and for a woman

employee having two or more than two surviving children, the

benefit is restricted to 12 weeks. Thus, there is no ceiling or cap

on the number of children to claim maternity benefit. Only thing

is that in case of a woman employee having two or more than

two surviving children seeking maternity leave, period of the

19 benefit is reduced: from a maximum period of 26 weeks to a

maximum of 12 weeks.

20. Section 27 of the Maternity Benefit Act is also

relevant. It deals with effect of laws and agreements

inconsistent with the Maternity Benefit Act and declares that

provisions of the Maternity Benefit Act shall have effect

notwithstanding anything inconsistent therewith contained in

any other law or in terms of any award, agreement or contract

of service, whether made before or after the coming into force of

the Maternity Benefit Act.

21. The objective of maternity leave has been expounded

by this Court in the case of B. Shah Vs. Presiding Officer, Labour

Court, Coimbatore2. This Court observed that maternity leave

legislation is intended to achieve the object of doing social

justice to women workers. It enables a woman worker not only

to subsist but also to make up her dissipated energy, nurse her

2 AIR 1978 SC 12

20 child, preserve her efficiency as a worker and maintain the level

of her previous efficiency and output.

22. We may now deal with relevant provisions contained

in international treaties and conventions dealing with maternity

benefits.

23. Universal Declaration of Human Rights was adopted

by the United Nations in the year 1948. Article 25 thereof has

got two sub-articles. Sub-article (1) says that everyone has the

right to a standard of living adequate for the health and well-

being of himself and of his family. This includes food, clothing,

housing, medical care etc. However, Article 25(2) is relevant

which is as under:

2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

23.1. Thus, Article 25(2) of the Universal Declaration of

Human Rights recognizes that motherhood and childhood are

entitled to special care and assistance. This principle

21 acknowledges State intervention and support for maternity

related entitlements.

24. International Covenant on Economic, Social and

Cultural Rights was adopted by the General Assembly of the

United Nations on 16th December, 1966. India ratified the said

covenant in the year 1979. Article 10(2) recognizes that special

protection should be accorded to mothers for a reasonable

period before and after childbirth. During such period working

mothers should be accorded paid leave or leave with adequate

social security benefits. Under Article 12 all the States who are

signatories to the aforesaid covenant acknowledged the steps to

be taken to achieve the full realization of the right to enjoy the

highest attainable standard of physical and mental health. This

would include provisions for the reduction of the stillbirth rate

and of infant mortality and for the healthy development of the

child.

25. The Convention on the Elimination of All Forms of

Discrimination Against Women (CEDAW) was held in 1979

under the aegis of the United Nations. As a matter of fact,

22 CEDAW was adopted by the United Nations General Assembly

on 18th December, 1979. This convention was the culmination

of more than 30 years of work by the United Nations

Commission on the Status of Women, established in the year

1946, monitoring the situation of women around the world and

to promote women’s rights. Thrust of CEDAW is maximum

participation of women on equal terms with men in all fields of

life to ensure full and complete development of a country.

CEDAW is the most comprehensive international convention

focused on eliminating discrimination against women. India

ratified CEDAW in 1993.

25.1. Article 11 emphasizes that appropriate measures

should be taken by all nations to eliminate discrimination

against women in the field of employment. Article 11(2) says

that in order to prevent discrimination against women on the

grounds of marriage or maternity and to ensure their effective

right to work, the States shall take appropriate measures. As

per clause (b), signatory States are under an obligation to

introduce maternity leave with pay or with comparable social

23 benefits without loss of former employment, seniority or social

allowances. Article 12(1) obligates States to take all appropriate

measures to eliminate discrimination against women in the field

of healthcare including access to healthcare services

particularly those related to family planning. On the other hand,

Article 12(2) says that notwithstanding the provisions of Article

12(1), signatory States shall ensure to women appropriate

services in connection with pregnancy, confinement and the

post-natal period, granting free services where necessary, as

well as adequate nutrition during pregnancy and lactation.

25.2. Article 16(1)(e) affirms the right of a woman to decide

freely and responsibly on the number and spacing of children

and to have access to the information, education and means to

do so. Article 16(1)(e) reads thus:

Article 16

1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

24 *** *** *** ***

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.

*** *** *** ***

26. In its 20th session held in 1999, CEDAW adopted

several recommendations. General recommendation No.24

pertains to women and health. Such recommendation

emphasized on the need to ensure access to adequate

healthcare facilities particularly in respect of family planning,

protection of women’s health and safety in working conditions,

including safeguarding of the reproductive function, special

protection from harmful types of work during pregnancy and

with the provision for paid maternity leave. It was also

emphasized that women should have the same rights as men to

decide freely and responsibly on the number and spacing of

their children.

27. A Maternity Protection Convention was held on 30th

May, 2000 at Geneva under the aegis of the International

25 Labour Organization. General Conference of the International

Labour Organization adopted the proposals of the said

Convention on 15th June, 2000. International labour standards

have long recognized maternity protection as essential for

promoting workplace equality and safeguarding maternal and

child health. This Convention applies to all employed women

including those in atypical forms of dependent work. Article 4

of this convention deals with maternity leave. As per clause (1),

a woman to whom the said convention applied shall be entitled

to a period of maternity leave of not less than 14 weeks. As per

clause (4), maternity leave shall include a period of 6 weeks

compulsory leave after childbirth for the protection of the health

of the mother and that of the child. Clause (5) clarifies that the

prenatal portion of maternity leave shall be extended by any

period elapsing between the presumed date of childbirth and

the actual date of childbirth, without reduction in any

compulsory portion of postnatal leave.

27.1. Under Article 8(1), it shall be unlawful for an

employer to terminate the employment of a woman during her

26 pregnancy. As per clause (2), a woman is guaranteed the right

to return to the same position or an equivalent position paid at

the same rate at the end of her maternity leave.

28. Thus, as can be seen from the above, through various

international conventions, the world community has recognized

the broad spectrum of reproductive rights which includes

maternity benefits. Maternity leave is integral to maternity

benefits. Reproductive rights are now recognized as part of

several intersecting domains of international human rights law

viz. the right to health, right to privacy, right to equality and

non-discrimination and the right to dignity.

29. Such international developments had its impact on

Indian law. In Suchita Srivastava Vs. Chandigarh Administration3,

a three-Judge Bench of this Court in the context of the Medical

Termination of Pregnancy Act, 1971 acknowledged the right of a

woman to make reproductive choices and held that such a right

is a facet of Article 21 of the Constitution. This Court held thus: 3

(2009) 9 SCC 1

27

22. There is no doubt that a woman's right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods.

Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children.

*** *** *** ***

30. This Court in Devika Biswas Vs. Union of India4

observed that the need to respect and protect reproductive

rights and reproductive health of a person has been recognized.

Reproductive right is an aspect of personal liberty under Article

21 of the Constitution. This decision was rendered in the

4 (2016) 10 SCC 726

28 backdrop of the sterlisation campaign carried out by the State. In Devika Biswas (supra), this court observed as under:

106. The manner in which sterilisation procedures have reportedly been carried out endanger two important components of the right to life under Article 21 of the Constitution—the right to health and the reproductive rights of a person.

*** *** *** ***

109. That the right to health is an integral part of the right to life does not need any repetition.

110. Over time, there has been recognition of the need to respect and protect the reproductive rights and reproductive health of a person. Reproductive health has been defined as “the capability to reproduce and the freedom to make informed, free and responsible decisions. It also includes access to a range of reproductive health information, goods, facilities and services to enable individuals to make informed, free and responsible decisions about their reproductive behaviour”.

The Committee on Economic, Social and Cultural Rights in General Comment No. 22 on the Right to Sexual and Reproductive Health under Article 12 of the International Covenant on Economic, Social and Cultural Rights observed that “The right to sexual and reproductive

29 health is an integral part of the right of everyone to the highest attainable physical and mental health.”

111. This Court recognised reproductive rights as an aspect of personal liberty under Article 21 of the Constitution in Suchita Srivastava v. Chandigarh Admn. The freedom to exercise these reproductive rights would include the right to make a choice regarding sterilisation on the basis of informed consent and free from any form of coercion.

*** *** *** ***

31. Elaborating on the contours of reproductive rights,

this Court in X Vs. Principal Secretary, Health and Family

Welfare Department, Govt. of NCT of Delhi5 observed that the

ambit of reproductive rights is not restricted to the right of

women to have or not to have children. It also includes the

constellation of freedoms and entitlements that enable a woman

to decide freely on all matters relating to her sexual and

reproductive health. This Court observed that although human

dignity inheres in every individual, it is susceptible to violation

by external conditions and treatment imposed by the State. The

5 (2023) 9 SCC 433

30 right of every woman to make reproductive choices without

undue interference from the State is central to the idea of

human dignity. Deprivation of access to reproductive healthcare

or emotional and physical well-being also injures the dignity of

women. This Court referred to Article 51 of the Constitution

which urges the State to foster respect for international law and

treaty obligations. Relevant extract of the said decision reads

thus:

101. The ambit of reproductive rights is not restricted to the right of women to have or not have children. It also includes the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health.

Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive healthcare. Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence.

31

32. In a recent decision, Delhi High Court in

Commissioner of Police Vs. Raveena Yadav6 explained the

purpose of maternity benefit. It is to ensure that a working lady

may overcome the state of motherhood honourably, peaceably

and undeterred by the fear of being victimized for forced

absence from work during pre and post natal periods. Women

now constituting a sizable portion of the work force in our

country, must be treated with honour and dignity at places

where they work to earn their livelihood. The High Court went

on to explain the impact of pregnancy on the physiological and

psychological state of a woman employee undergoing

pregnancy. It is not just motherhood but also childhood that

require special attention. Health issues of both mother as well

as that of the child are to be kept in consideration while

providing maternity leave. Concept of maternity leave is a

matter of not just fair play and social justice but is also a

constitutional guarantee to the women employees of this

country towards fulfillment whereof the State is bound to act.

6 MANU/DE/4823/2024

32

33. In Deepika Singh (supra), appellant at the material

time was working as a nursing officer in the Post Graduate

Institute of Medical Education and Research, Chandigarh

(PGIMER). Her spouse had two children from his first marriage.

After his first wife passed away he married the appellant. In

official record she declared the two children of her spouse from

the first marriage as her children. On 04.06.2019 she had her

first biological child from her marriage. She applied for

maternity leave in terms of Rule 43 of the Central Services

(Leave) Rules, 1972 (‘1972 Rules’ hereinafter) which rules are

applicable to PGIMER. Request of the appellant for grant of

maternity leave was rejected on the ground that she had two

surviving children and had availed of child care leave earlier for

the two children born from the first marriage of her spouse. Her

first biological child was considered as the third child. Therefore

her request for grant of maternity leave was found to be

inadmissible in terms of the 1972 Rules.

33.1. Appellant challenged the said decision before the

Central Administrative Tribunal, Chandigarh Bench (Tribunal).

33 However, her original application was dismissed by the

Tribunal. When the appellant moved the High Court calling into

question the decision of the Tribunal, High Court also dismissed

the same on the ground that there was no perversity or illegality

in the judgment of the Tribunal.

33.2. Thereafter, the matter travelled to this Court. This

Court referred to Rule 43 of the 1972 Rules which deals with

maternity leave. As per Rule 43(1), only a female Government

servant with less than two surviving children may be granted

maternity leave. This Court opined that provisions of Rule 43(1)

must be imbued with a purposive construction. Since it is a

beneficial legislation, it has to be construed with a purpose

oriented approach and must receive a liberal construction to

promote its objects. The courts must bridge the gap between

law and society through the use of purposive interpretation.

Though this Court acknowledged that the Maternity Benefit Act

has no application to PGIMER as an establishment, yet for the

purpose of adopting an approach which furthers legislative

policy, referred to the provisions of the Maternity Benefit Act to

34 derive some guidance therefrom. After an exhaustive analysis of

Section 5 of the Maternity Benefit Act, this Court observed that

the said Act was enacted to secure women’s right to maternity

leave and to afford women with as much flexibility as possible

to live an autonomous life, both as a mother and as a worker.

Thereafter, this Court referred to the various international

treaties and conventions.

33.3. In the facts of that case, this Court observed that

spouse of the appellant had a prior marriage which had ended

as a result of the death of his wife after which the appellant

married him. However, what is relevant and important is the

following declaration of this Court:

24. …….The fact that the appellant’s spouse had two biological children from his first marriage would not impinge upon the entitlement of the appellant to avail maternity leave for her sole biological child……

33.4. Thus, this Court was categorical in declaring that the

factum of appellant’s spouse having two biological children from

his first marriage would not impinge upon the entitlement of the

appellant to avail maternity leave for her sole biological child.

35 Grant of child care leave to the appellant for the two children of

her spouse from his previous marriage cannot be used to

disentitle her to maternity leave under Rule 43 of the 1972

Rules. In the context of employment, child birth has to be

construed as a natural incident of life and, hence, provisions for

maternity leave must be construed in that perspective.

Observing that when courts are confronted with such

situations, they would do well to attempt to give effect to the

purpose of the law in question rather than to prevent its

application.

34. Insofar the present case is concerned it is true that

appellant has two biological children out of her first wedlock.

But that was before entry into her service. Post entry into

service and from her subsisting marriage, this is her first child.

It has come on record that the two children out of her first

wedlock are not residing with her but with their father, who is

having their custody.

35. Policy of the State to arrest population growth by

resorting to various population control measures is certainly a

36 laudable objective. So is the objective of granting maternity

benefit to women employees. The object of having two child

norm as part of the measures to control population growth in

the country and the object of providing maternity benefit to

women employees including maternity leave in circumstances

such as in the present case are not mutually exclusive. The two

must be harmonized in a purposive and rationale manner to

achieve the social objective.

36. In the circumstances, we are unable to agree with the

view taken by the Division Bench of the High Court. Though

learned Single Judge had granted the relief to the appellant, we

are also unable to persuade ourselves to the line of reasoning of

the learned Single Judge.

37. We accordingly set aside the judgment and order of

the Division Bench of the High Court dated 14.09.2022 and

declare that appellant shall be granted maternity leave under

FR 101(a). Maternity benefits which are admissible to the

appellant shall be released to her within a period of two months

from today.

37

38. Appeal is accordingly allowed. However, there shall

be no order as to cost.

……………………………J. [ABHAY S. OKA]

……………………………J. [UJJAL BHUYAN] NEW DELHI;

MAY 23, 2025.

38