Maternity and Child Care Leave In Municipal Corporation of Delhi v.

Female Workers (Muster Roll), 11

female employees who had been working for years as daily wage employees with the Municipal
Corporation of Delhi were denied maternity leave because they were classified as temporary workers.
The Supreme Court struck down this practice. Relying on fundamental rights enshrined in Articles 14 and
15, the Directive Principles of State Policy reflected in Articles 39, 42 and 43 of the Indian Constitution
and India’s international law obligations under Article 11 of Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW), the Court held that regardless of the nature of their duties,
their avocation and the place where they work, all female workers must be provided the facilities to
which they are entitled under the MB Act 1961. It also stated that India’s obligations under Article 11 of
CEDAW should be read into the employment contract between the Corporation and the Muster Roll
workers. Similarly, the Delhi High Court in Seema Gupta v. Guru Nanak Institute Management, 12 held
that provisions providing for maternity benefits under the employment and service regulations should
be construed in the light of Articles 15, 41 and 42 of the Indian Constitution and the obligations under
UDHR and CEDAW. It stated that the case of an employee seeking extension of her maternity leave in line
with employment regulations is not to be construed as a traditional case of enforcement of contract of
service but an exercise of her fundamental rights. Recognizing that workplaces often do not pay
adequate attention to family care giving responsibilities, and that in a patriarchal society such a working
environment serves “overwhelmingly to suit men”, the Kerala High Court in Mini K.T. v. Life Insurance
Corporation of India13 held that any action taken against a woman employee for her absence from duty
on account of such familial obligations would be an affront to her status, dignity and self-respect
protected under Article 21, and guarantees of equality and non-discrimination in matters of employment
under Articles 14 to 16 of the Indian Constitution. With the advent of surrogacy, an issue that has come
up repeatedly before courts is the entitlement of commissioning mothers to maternity leave. In K.
Kalaiselvi v. Chennai Port Trust, 14 the Madras High Court held that as is the case with an adoptive
mother, even a woman employee who has a child through a surrogacy arrangement is entitled to
maternity leave. The Bombay High Court reiterated this position in Hema Vijay Menon v. State of
Maharashtra. 15 This judgment also recognised the right to motherhood and right of every child to full
development under Article 21 of the Indian Constitution. In P. Geetha v. Kerala Livestock Development
Board Limited, 16 the Kerala High Court clarified that a commissioning mother is entitled only to post-
natal statutory benefits that accrue to an employee who herself delivers a child. On the other hand, the
Delhi High Court in Rama Pandey v. Union of India, 17 held that a commissioning mother is entitled to
maternity leave not only in the post-natal period but also in the pre-natal period as she might be
required to financially, emotionally and physically support the surrogate through her presence during her
pregnancy. Noting that the applicable Central Civil Service (Leave) Rules did not define the term
“maternity,” the Court held that “maternity” is established once a pregnancy is conceived, even if in a
womb other than that of the commissioning mother. The Maternity Benefits (Amendment) Act, 2017
now clarifies this issue, by expressly providing 12 weeks of maternity leave to commissioning and
adoptive mothers from the date on which the child is handed over to them.18 A commissioning mother
is defined in the Act as a woman whose own egg is used to create the embryo that is implanted in the
surrogate.19 Hence, for commissioning mothers who use donor eggs to create the embryo, the
principles mentioned in the cases above may still apply, rather than the statutory protections under the
Maternity Benefits (Amendment) Act, 2017. Likewise, for other types of benefits, relaxations or
exemptions, etc., the distinctions made in these cases may be of relevance. In T. Priyadharsini v. The
Secretary to Government, Department of School Education, Government of Tamil Nadu, 20 the Madras
High Court was approached by two women government teachers, who had delivered twins in their first
pregnancy, and were now being denied maternity leave for their second pregnancy on the ground that
they already had two surviving children. The Court struck down the Government Orders based on which
maternity leave was denied to the 449 PREGNANCY, MATERNITY AND CHILD CARE LEAVE, AND
EMPLOYMENT CHAPTER 12 petitioners on the ground that maternity leave could not be denied on the
basis of executive fiat alone. In the absence of any legislative authorization to restrict maternity leave
based on the number of children, the Court held that a woman is entitled maternity leave per delivery
and not per child, since the intention behind providing maternity leave is to provide protection to
women during/after delivery.2