This article is written by Saloni, of 7th Semester of BBALL.B. of Department of Law, Bhagat Phool Singh Mahila Vishwavidyalaya, Khanpur Kalan, an intern under Legal Vidhiya
ABSTRACT
A worker may use protected time off during maternity or paternity leave to care for their new baby or recently adopted child. Not just women are responsible for giving birth to children and raising them; males are as well. Additionally by giving both parents equal parental leave Maternity leave is justified in order to assist women in managing the physical and emotional demands of pregnancy, childbirth, and breastfeeding. Parental and paternity leave are designed to help with the care and raising of children once they are born, a responsibility that both mothers and fathers should share. According to a new research, Maternity protection at work, published by the International Labour Office (ILO), more than 120 countries throughout the world, with the exception of Australia, New Zealand, and the United States, mandate paid maternity leave and health benefits. This article gives an over view about paternal and maternal leave and specifically aimed to compare both these leaves.
Keywords: maternity leave, paternity leave, maternity benefit act 1961, UDHR, central service rules, paternity benefit bill 2017
INTRODUCTION
Despite the fact that the mother delivers the kid, the father is just as crucial. A father is expected to be there for his child both physically and emotionally before and after birth. According to the study, women are the primary breadwinners in 30% of all homes worldwide. An estimated 60 million people reside in families run solely by women in India alone. In just over ten years, 70% of women worldwide and 80% of women in industrialized nations will be employed outside the home during the whole period of childbearing. Working women who become pregnant worldwide face the fear of losing their jobs, having their pay suspended, and having their health risks increase due to the lack of adequate protections for their employment, Paternity leave has recently been introduced in an effort to encourage fathers to take care-related leave. The Indian government made a stunning move in 2017 by circumventing the new Maternity Bill, which now permits mothers to take up to 26 weeks of leave instead of the previous 12 weeks. Paternity leave is not required to be granted by private organizations in India, unlike maternity leave, where it is mandated everywhere. However, only a few large multinational firms, such as Microsoft, IKEA, etc., are taking action to provide paternity leaves.
MEANING OF MATERNITY LEAVES
[1]Merriam-Webster defines “Maternity Leave” as the period of time a woman has taken off from work to care for her new baby. Motherhood protection is regarded as a core labor right by the major universal human rights treaties. In accordance with Article 25 of the Universal Declaration of Human Rights (UDHR), mothers and children must receive special attention and support. The Maternity Benefit Act was first adopted by the Indian government in 1961, and a Maternity Benefit (Amendment) Act was later passed in 2017. Due to this regulation, all female employees are guaranteed paid time off during pregnancy and for a few weeks after delivery. In India, a woman employee is eligible for maternity leave if she has worked for the same manager or company for at least 80 days in the 12-month period prior to the expected birth date.
MEANING OF PATERNITY LEAVES
Paternity leave policies are becoming more common in many nations as a result of shifting perceptions of fathers’ obligations and the need to encourage a more equitable division of unpaid domestic labor. Fathers are entitled to a specific number of days off work during this leave at the time of the baby’s birth. This leave is intended to allow dads to be present for the birth of their child, to take part in any celebrations or events surrounding it, and to complete any necessary formalities. Additionally, paternity leave gives fathers a crucial chance to start nurturing and bonding with their children, to assist the mother with the numerous physical and psychological demands associated with childbirth, and to start taking on and being actively involved in care giving duties. [2]According to Merriam-Webster, “Paternity Leave” means the period taken off by the father after the birth of the newborn child. [3]Paternity leaves are provided to ensure that the father and the newborn child create a healthy relationship among them. According to a report released by UNICEF last month, paternity leave is typically far shorter than maternity leave but is also better compensated.
MATERNITY LEAVE IN OTHER COUNTRIES
Canada: 16 weeks at 49% pay
Germany: 14 weeks at 100% pay
India: 26 weeks at 100% pay
France: 16 weeks at 90% pay
Sweden: 12.9 weeks at 77% pay
Italy: 21.7 weeks at 80% pay
Mexico: 12 weeks at 100% pay
Norway: 13 weeks at 94% pay
Australia: 18 weeks at 42% pay
THE LEGAL DEFINITIONS OF BOTH LEAVES
In India, a woman employee is eligible for maternity leave if she has worked for the same manager or company for at least 80 days in the 12-month period prior to the expected birth date. According to the Paternity Benefit Bill of 2017, all employees who work in the unorganized or private sector are eligible to request a 15-day paternity leave. Up to three months may be added to this time frame. According to the Paternity Benefit Bill of 2017, all employees who work in the unorganized or private sector are eligible to request a 15-day paternity leave. Up to three months may be added to this time frame. According to the Paternity Benefit Bill of 2017, all employees who work in the unorganized or private sector are eligible to request a 15-day paternity leave. Up to three months may be added to this time frame.
PATERNAL LEAVE AND MATERNAL LEAVES IN INDIA
The Maternity Benefit (Amendment) Act, 2017, was passed by the Indian government in 2017 with the specific aim of protecting women throughout their pregnancies and giving paid leaves during their absences.
The Maternity Leave (Amendment) Act, 2017,’s main features include:
- The length of maternity leave has expanded from the previous 12 weeks to 26 weeks,
- Women can request a leave benefit of up to 12 weeks for a third child.
- If the adopted child is under 3 months old, women can request 12 weeks of maternity leave.
- Women are entitled to 12 weeks of maternity leave if they are utilizing their eggs to create an embryo in a different woman.
- If there are more than 50 workers in a place of business, the employer must provide child care services.
- Working mothers may be eligible for work-from-home benefits depending on the type of employment.
- The employer must provide all perks available to women at the time of their employment’s start up in writing.
PATERNITY LEAVE
In the 1970s, paternity leave was first introduced, albeit only in a few nations. Over the first two decades of the new millennium, it gradually gained shape. In 2019, Canada made it legal for everyone, including adoptive parents and parents of same-sex children, to take five weeks off work. Only government employees in India are entitled to 15 days of paternity leave. In India, paternity leave is granted 15 days prior to the expected birth or within six months of that date. The father has obligations to his wife and the newborn child, just like the mother does. The Central Civil Services (Leave) Rule 551 (A) of the Indian Central Government established provisions for paternal leave for male employees to care for their wives and new babies in 1999. The Paternity Benefit Bill of 2017 grants all employees the ability to request paternity leave.
The legal stance on paternity leave is as follows:
• Private employers are not required to give their male employees paternity leaves.
• A male civil servant who has fewer than two children may take paternity leave for up to six months after the child is born or for a period of 15 days prior to the child’s birth.
• The leave can be paired with any other type of leave. In most cases, paternity leave cannot be denied, and it is also applicable in cases of adoption of children younger than one year.
For a period of 15 days prior to delivery or for a maximum of 6 months following the child’s birth, a male government worker with fewer than 2 children may take paternity leave. The leave could expire if it is not used within six months of the child’s birth.
• The leave can be paired with any other type of leave. In most cases, paternity leave cannot be denied, and it is also applicable in cases of adoption of children younger than one year.
In most cases, paternity leave cannot be denied, and it is also applicable in cases of adoption of children younger than one year. When it comes to the private sector, Deutsche Bank (DB) was the first commercial company to provide fathers, who are primary caregivers, with 6 months of paternity leave. A small number of domestic and foreign businesses are offering paternity leaves on a voluntary basis. For example, Zomato offers 26 weeks of paternity leave and 69,000-rupee benefits to its staff members who have recently become parents. TCS offers 15 days of paternity leave, WIPRO offers 8 weeks, and Infosys offers 5 days. During the Australian tour, Virat Kohli, the captain of the Indian cricket team, took a paternity leave for his newborn child.
ROLE OF JUDICIARY IN ENSURING PATERNITY RIGHT
In the case of [4]Chander Mohan Jain v. N.K. Bagrodia Public School (2009), the court stated that all male employees from unaided recognized private schools shall have the right to request paternity leave. This case demonstrates how important the judiciary has been in ensuring paternity rights. It is obvious that the trend has changed and that paternity leave is now given equal weight. The father’s position in the family has been acknowledged since he plays a significant role in ensuring that his wife receives moral support during pregnancy and developing a positive relationship with his newborn child.
Unlike maternity leave, paternity leaves are subject to the following legal restrictions:
- 1. That no private company, institution, or employer is required by law to grant male employees paternity leave.
- A male government servant may request paternity leave under the Central government Service (Leave Rule), 1972, up to 15 days before to delivery or within six months of the estimated delivery date (applicable only up to two children).
- 3. If the government worker does not use the leave within six months of the scheduled delivery date, it will expire.
- And such paternity leave by the civil servant cannot be refused and even be claimed in the case of an adoptive child.
COMPARISON OF INTERNATIONAL AND INDIAN PATERNITY LEAVE POLICIES
Paternity leave is a relatively new idea in India. Although the government has made progress in granting dads paternity leave, it still traces behind other nations in terms of its length, accessibility, and advantages. For instance, the nation now has a 15-day leave policy, which is significantly smaller than the 18-week global average. Furthermore, a number of nations offer paternity leaves that can last up to more than a year and are fully paid, giving dads enough time to bond with their babies without having to worry about their financial security. For instance, Sweden offers 480 days of paid parental leave. Companies with remote workers in India should be aware of regional variations in paternity leave laws and make an effort to enact laws that follow international best practices.
CASE LAWS
[5]Deepika Singh v. central administrative tribunal and others (2022)
The Hon. Supreme Court of India has ruled that the term “family” has a wider definition that encompasses domestic partnerships, unmarried couples, and LGBTQ relationships. It is accepted that a family might have a single parent for a variety of reasons, such as a spouse’s death, a separation from another person, or a divorce. Furthermore, it is maintained that remarriage, adoption, or foster care may result in a change in the guardians and carers of children (who traditionally play the roles of “mother” and “father”).
[6]Dr. Baba Sahib Ambedkar hospital govt. of Nct of Delhi and Anr. Vs. Dr Krati Mehrotra
In this case When examining whether maternity benefits were admissible for a female ad hoc employee whose contract was periodically extended, the Delhi High Court noted that the employer cannot avoid its obligation to pay benefits under the Maternity Benefits Act of 1961 even for a period that spills beyond the tenure of the contract as long as conception occurs before the tenure of the employment contract expiry.
[7]Vandana Kandari vs. University of Delhi
The court ruled that any act by a university or college that excludes or holds back any female student during any semester solely because she was unable to attend classes due to being pregnant or having given birth is an act that completely negates not only the spirit of the Constitution but also women’s rights and the idea of gender equality.
[8]Dr. Pooja Jignesh Doshi v. State Of Maharashtra And Another
In this judgement the High court discussed the concept of Motherhood and maternity. It was held that the parents who lent the ova and sperm would be eligible to take leave even in the case of a surrogate birth.
[9]Vijender Kumar v. Delhi Transport Corporation,
In this case, the petitioner was a driver for Delhi Transport Corporation who requested paternity vacation for his second child. The request was denied on the grounds that DTC employees are not eligible for paternity leave. The aforementioned incident is another one where employees are only experiencing financial losses as a result of hazy policies.
SUGGESTION AND CONCLUSION
The study of maternity leave laws has significant ramifications for companies, legislators, and society at large. The research demonstrating the positive effects longer maternity leave policies can have on women’s and children’s health, gender equality, and economic gains should be considered by policymakers. They should also take into account policies that support parents in juggling their obligations to their children and to their employers by encouraging men to take paternity leave.
[1] Definition of maternity leave. (2023). In Merriam-Webster Dictionary. https://www.merriam-webster.com/dictionary/maternity%20leave#:~:text=%3A%20time%20off%20from%20a%20job,care%20of%20a%20newborn%20child
[2] Definition of paternity leave. (2023b). In Merriam-Webster Dictionary. https://www.merriam-webster.com/dictionary/paternity%20leave#:~:text=%3A%20time%20off%20from%20a%20job,after%20a%20child%20is%20born
[3] (Thakur, 2021)https://blog.ipleaders.in/maternity-versus-paternity-leaves-differences-along-similarities/
[4] (chander mohan jain v. n.k. bagrodia public school , 2009) https://www.casemine.com/judgement/in/5767b107e691cb22da6d12d2
[5] (Deepika Singh vs Central Administrative Tribunal, 2022) https://indiankanoon.org/doc/26134676/
[6] (Dr. Baba Saheb Ambedkar Hospital … vs Dr. Krati Mehrotra , 2021) https://indiankanoon.org/doc/148927816/
[7] (Vandana Kandari vs University Of Delh, 2010) https://indiankanoon.org/doc/80307634/
[8] (Dr. Mrs. Pooja Jignesh Doshi vs The State Of Maharashtra, 2019) https://indiankanoon.org/doc/132317922/
[9] (Vijender Kumar v. Delhi Transport Corporation, 2016) https://www.casemine.com/judgement/in/5b053bd64a93266674a56233
