Adoptive Mother Should Be Entitled To Maternity Leave Of 12 Weeks, Irrespective Of The Age Of The Adopted Child: SC
Most fairly, while striking down Section 60(4) of the Social Security Code, 2020 (which came into effect on 21.11.2025) as unconstitutional, the Hon’ble Apex Court in Hamsaanandini Nanduri v. Union of India [W.P.(C) No. 960/2021], has held that “A woman who legally adopts a child, or a commissioning mother, shall be entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.”
The Court specifically held that maternity is not only a basis human right but it is also a right constitutionally guaranteed under Article 14 of the Constitution of India.
Social Security Code, 2020 which came into effect on 21.11.2025, amended and consolidated all laws relating to social security, including that of the Maternity Benefit Act, 1961. Section 60 of the Social Security Code, 2020 provides for the Right to payment of maternity benefit. Sub-clause (4) to Section 60 restricted the entitlement of leave of an adoptive mother only in cases where the child adopted is less than the age of three months. As per the sub-section, “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 date the child is handed over to the adopting mother or the commissioning mother, as the case may be.” The Court was of the opinion that the age-based distinction is not a rational classification and “The age limit renders the provision illusory and devoid of practical application.” The Court rationalised that the maternal responsibilities of a woman adopting a child above 3 months are the same as those of a woman adopting a child aged less than 3 months.
The decision was given by a bench comprising Justice JB Pardiwala and Justice R Mahadevan did not stop to grant relief to the adoptive mother who had moved the PIL but further went on to urge the Union Government to recognise law on paternity leave as a vital component of child welfare and gender equality . The Court opined that “On the need of paternity leave, we urge the Union to come up with a provision recognising paternity leave as a social security benefit. We emphasise that the duration of such leave must be determined in a manner that is responsive to the needs of both the parents and the child.”
The Hon’ble Bench showed its societal concerns by stating that “”The absence of paternity leave produces two consequences. First, it reinforces gendered roles in parenting. Secondly, even where a father is willing and desirous of contributing, he is left without a meaningful opportunity to do so. When fathers are afforded the opportunity to take leave following the arrival of the child, they are able to support mother and share family responsibilities. This support extends to participating in the upbringing and caregiving of the child, assisting with household responsibilities, and remaining emotionally present during this demanding phase.” Court was of the opinion that a provision for paternity leave serves an important purpose by enabling fathers to participate meaningfully in the early stages of a child’s life and development. It helps in dismantling gendered roles, encourages fathers to take an active role in child care, fosters a balanced understanding of parenting, and promotes gender equality within family and workplace. It also advances the best interests and welfare of the child, which are most effectively served when both parents are enabled to play meaningful and complementary roles in the child’s growth and development.
