J U D G M E N T

For the convenience of exposition, this judgment is divided into the following parts:-

1. We are tempted to preface our judgment with the words of poet Fleur Conkling Heyliger. The stanza captioned above resonates with an undiminishing force in the present petition as well. It communicates that transition into motherhood does not occur in the brief moment when legal formalities are completed, rather it is a gradual process that takes shape in the heart of the mother. It is within these unspoken moments of reassurance and bonding that the relationship between a mother and child is gradually formed and strengthened.

2. Before we address ourselves on the issues raised in the writ petition, we find it apposite to note that the petitioner filed the I.A. No. 33856/2026 to amend the writ petition to bring on record the amendment and consolidation of the impugned provision by way of the Code on Social Security, 2020. We allow the I.A. for the amendment of the writ petition. The amended writ petition is considered for the purposes of the following exposition.

I. THE CONTEXT

3. The petitioner, who is an adoptive mother of two children, has filed the present petition under Article 32 of the Constitution in public interest, seeking a declaration to the effect that Section 5(4) of the Maternity Benefit Act, 1961 (for short, “MB Act”) as amended by the Maternity Benefit (Amendment) Act, 2017 (for short, “Amendment Act, 2017”) is unconstitutional, being violative of Articles 14, 19(1)(g) and 21 of the Constitution, respectively. The prayer in the petition reads thus:-

“a) Issue a Writ, Order or direction, more particularly one in the nature of Writ of Mandamus or any other writ or direction in the nature of the writ and declare Section 5(4) of the Maternity Benefit (Amendment) Act 2017) as ultra vires Articles 14, 19 and 21 of the Constitution of India, and declare the Section 5(4) of the Maternity Benefit (Amendment) Act 2017) as unconstitutional and invalid;
b) Pass any other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case, in the interest of justice and equity.”

4. At the outset, we must mention that on 21.11.2025, the Code on Social Security, 2020, came into effect (for short, “the 2020 Code”), by which all laws relating to social security, including that of the MB Act were amended and consolidated. Insofar as Section 5(4) of the MB Act is concerned, Section 60(4) of the 2020 Code is the existing pari materia provision and holds the field on the issue at hand.

5. By order dated 12.12.2025, the Court granted the petitioner permission to take suitable steps to challenge the newly enacted provision, i.e., Section 60(4) of the 2020 Code. Pursuant to which, the petitioner filed I.A. No. 33856/2026 seeking amendment of the petition to challenge Section 60(4) of the 2020 Code on the same grounds which were applicable to Section 5(4) of the MB Act.

6. The impugned provision entitles only those mothers who legally adopt a child below the age of three months or a commissioning mother to seek maternity benefit for a period of twelve weeks from the date on which the child is handed over to the adoptive mother. However, the challenge before us is limited to the extent that it governs adoptive mothers.

II. SUBMISSIONS ON BEHALF OF THE PARTIES

i. Submissions on behalf of the Petitioner

7. Ms. Bani Dikshit, the learned counsel appearing for the petitioner would argue that Section 60(4) of the 2020 Code creates an unreasonable classification among adoptive mothers. She submitted that the distinction created by the legislature between a woman who adopts a child aged less than three months and a woman adopting a child aged three months or above is artificial and violative of Article 14. She fortified her submission by illustrating that if a woman adopts a child aged four months, she would not be entitled to maternity benefit as provided under the 2020 Code.

8. She added that such an exclusion bears no rational nexus with the object of the 2020 Code and unjustly deprives a mother adopting a child aged three months or above. She further submitted that the age limit of three months could not be said to fulfill the bright-line test, as there is no reasonable distinction between adoptive mothers falling on either side of three-month limit.

9. Ms. Dikshit further submitted that by prescribing the maximum age of the adopted child at three months, Section 60(4) deprives all children above the age of three months from receiving maternal care they need for their development and integration in their adoptive families. In other words, the provision overlooks the physical and emotional well-being of the adoptive child aged three months or above as well as the adoptive parent. Thus, the provision is arbitrary, unreasonable and discriminatory not only towards the mother but also towards the child.

10. In the same breath, she submitted that the provision disregards the long-drawn procedure for the adoption of orphaned, abandoned, or surrendered children under the Juvenile Justice (Care and Protection of Children) Act, 2015 (for short, “the JJ Act”) and the Adoption Regulations, 2022 (for short, “the CARA Regulations”). She underscored that the process for an orphaned, abandoned, or surrendered child to be “legally free for adoption” would take, at the very least, two months. Furthermore, for the fulfillment of the residuary the statutory procedure under the CARA Regulations would require another month. Thus, in view of such prescribed timeline, the provision would be rendered completely otiose, as in no case can the legal process of adoption be completed before the child.

11. She further highlighted that Section 60(4) restricts a woman’s right to carry on her trade, occupation, and business guaranteed under Article 19(1)(g) of the Constitution based on the child’s age. She added that such a restriction dissuades women who are working professionals from adopting. Thus, the provision fails to ensure that more children are adopted and also discourages women working in the organized or unorganized sector from considering adoption.

12. She further submitted that the provision also violates the adoptive mothers’ and adoptive children’s right to life and dignity under Article 21 by denying the mother the right to a wholesome and holistic motherhood and the adoptive children the right to receive sufficient care to be rehabilitated and integrated into the new family.

13. In such circumstances referred to above, the learned counsel appearing for the petitioner would submit that Section 60(4) of the 2020 Code be declared unconstitutional, to the extent that it limits the benefits to women adopting children up to three months old, being violative of Articles 14, 19, and 21 of the Constitution, respectively.

ii. Submissions on behalf of the Respondents

14. Mr. K.M. Nataraj, the learned Additional Solicitor General appearing for the respondents submitted that Section 60(4) of the 2020 Code should to be read and interpreted along with the entire scheme of the maternity benefit.

15. The learned ASG submitted that the submission canvassed on behalf of the petitioner that the procedure of the adoption is time consuming is devoid of any merit. He submitted that with a view to expedite the adoption process, district magistrates and additional district magistrates have been conferred with the power to issue adoption orders.

16. In the aforesaid context, he submitted that in case an adoptive mother adopts a child aged more than three months, she can avail the creche facilities available at her establishment as per Section 67 of the 2020 Code.

17. It was further submitted that the prescription of “a child below the age of three months” is reasonable as a child older than three months does not have the same intensive dependency on the caregiver in terms of continuous feedings, sleeping regulation assistance, and immediate parental imprinting to the same degree.

18. In the last, the learned ASG submitted that Section 60(4) of the 2020 Code strikes a balance between the rights of adoptive mothers and the concerns of employers. He added that the provision satisfies the proportionality principle, ensures harmonious construction with other laws, and is consistent with international standards.

III. ISSUES FOR CONSIDERATION

19. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions fall for our consideration:-

IV. ANALYSIS

A. Maternity protection as a basic human right

20. Women, as primary caregivers of children, play a crucial role in the early development of children, more particularly, in the formative years of the child when a mother provides stability, care, and consistent nurturing. During this period, mothers undertake extensive physical, emotional, and psychological responsibilities. It often requires them to prioritize childcare over professional commitments. In such circumstances, institutional support becomes necessary to enable them to discharge responsibilities effectively without fear of financial insecurity, professional disadvantage, or the loss of livelihood.

21. The protection of maternity leave is a basic human right, as it recognizes conditions that are necessary for the full development of human personality and realization of equality. It embodies an essential component required to promote equality at workplace and safeguards maternal and child health. In other words, it dignifies motherhood.

22. Maternity benefit or the payment in lieu of such leave is intended to support women during the phase of early motherhood by providing economic security when they are most engaged in the care and nurture of a young child. This act of support recognizes that motherhood entails sustained physical, emotional, and social exertion which demands time, financial stability and resources.

23. The concept of maternity benefit acknowledges the ability of a woman to exercise her reproductive choices without fear of losing her employment, more particularly, the economic security. Thus, it ensures that motherhood does not become a factor for exclusion at workplace.

24. In the aforesaid context, the right of maternity protection recognizes the biological as well as caregiving realities associated with motherhood, and seeks to correct structural inequalities that women face in employment. It represents the State’s commitment to uphold human dignity, equal treatment at work, and broader ideals of social justice.

25. Thus, legislating for maternity benefit and childcare, in the form of payment during periods of recovery and care, crèche facilities at the workplace, and parental leave for tending to young children, constitutes institutional support aimed at enabling women to seek and retain employment, participate meaningfully in public life, and progressively attain substantive equality.

26. It is important to highlight that motherhood is not merely a biological function but a deeply personal and emotional experience. It is a right rooted in the freedom to love, nurture, and raise a child with dignity and devotion. Parenthood is defined by care and responsibility rather than by physical act of giving birth alone, even more so for women who choose to embrace motherhood by adopting a child overcoming social, emotional, and institutional barriers to provide a child with security.

i. Recognition of maternity protection in the International Law framework

27. Article 25(2) of the United Declaration of Human Rights (UDHR) recognizes that motherhood and childhood are entitled to special care and assistance. It stipulates that all children enjoy the same social protection. Further, Article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that mothers are entitled to special protection for a reasonable period before and after childbirth, including paid leave or leave supported by adequate social security benefits. In addition to this, Article 12 obligates the State Parties to take necessary steps for the healthy development of children.

28. The International Labour Organization (ILO) through Maternity Protection Conventions (Convention No. 3, Convention No. 103, and Convention No. 183) recommended for entitlements related to maternity protection at work having regard to the evolving status and recognition of women’s right at workplace. Initially, Convention No. 3 provided 12 weeks maternity leave with cash benefits to ensure continuity of income, daily breaks for nursing, and protection against dismissal during leave. However, this was limited to women working in public or private industrial or commercial undertakings. Later, Convention No. 183 extended the period of leave to 14 weeks and the scope of protection to women employed in industrial undertakings and in non-industrial and agricultural work.

29. Further, Article 11(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) mandates the State Parties to take appropriate steps to prevent discrimination against women on the grounds of maternity and ensure their right to work. It puts an obligation on the State Parties to prohibit dismissal on the grounds of maternity leave and introduce maternity leave with comparable social benefits without loss of former employment.

30. Simultaneously, Article 3 of the Convention on the Rights of the Child (CRC) mandates that all actions concerning children must be taken having regard to the best interests of the child. It urges the State Parties to ensure that all institutional facilities responsible for the care of children shall conform with the established standards.

31. What is discernable from the aforesaid discussion is that various international conventions recognize maternity leave as an essential human right. The objective of all the aforesaid guiding principles is to preserve the health of the mother and the child, to prevent unequal treatment at workplace due to their reproductive choices, and to promote equality of opportunity and equitable treatment between genders.

ii. Statutory recognition of maternity benefit in India

32. The earliest statutory recognition of maternity benefit for working women in India came through the Bombay Maternity Benefit Act, 1929, which regulated the employment of women in factories before and after childbirth and provided for the payment of maternity benefit. In 1931, the Royal Commission on Labour in India recommended that similar protective measures be taken across the country. Thus, such protection was being provided under various State and Central legislations (such as the Madras Maternity Benefit Act, 1934 (Act 6 of 1934), Bengal Maternity Benefit Act, 1939 (Act 4 of 1939), Punjab Maternity Benefit Act, 1943 (Act 6 of 1943), The Assam Maternity Benefit Act, 1944 (Act 1 of 1944), Bihar Maternity Benefit Act, 1945 (Act 24 of 1947)).

33. With a view to bring uniformity in, inter alia, the qualifying conditions for maternity benefit, period of maternity leave, payment in lieu of maternity leave, and to reduce disparity and extend maternity benefit to all women employed in establishment, the MB Act was enacted. The Introduction and the Statement of Objects and Reasons of the Act respectively read thus:-

“Maternity protection was being provided under the different State Acts and the three Central Acts. There was considerable diversity in their provisions relating to qualifying conditions, period and rate of benefit, etc. To reduce the disparities and to provide the maternity protection to the women employed in all establishments, including mines, factories and plantations, except those to which the Employees' State Insurance Act, 1948 applied, it was proposed to enact a separate law. Accordingly the Maternity Benefit Bill was introduced in the Parliament.

STATEMENT OF OBJECTS AND REASONS
Maternity protection is at present provided under the different State Acts on the subject and three Central Acts, viz., the Mines Maternity Benefit Act, 1941, the Employees' State Insurance Act, 1948 and the Plantations Labour Act, 1951. There is considerable diversity in their provisions relating to qualifying conditions, period and rate of benefit, etc. The proposed legislation seeks to reduce as far as possible the existing disparities in this respect. It will apply to all establishments, including mines, factories and plantations, except those to which the Employees' State Insurance Act, 1948 applies and its provisions approximate as nearly as possible to those of that Act.”

34. The MB Act was enacted with the object of regulating the employment of women in establishments for periods before and after child birth and providing for the payment in lieu of maternity leave. It aimed to ensure that a working woman does not have to compromise on her role as a caregiver to her child.

35. The concept of maternity benefit also operates as an instrument of “defamilisation”, whereby it reduces the woman’s reliance on family for care and protects economic independence. It represents a legislative commitment towards the promotion of gender equality by creating an enabling environment that recognizes and accommodates balancing familial responsibilities with professional engagement. In doing so, the statute affirms dignity, equality, and social justice for working women.

36. Sometime between 2012 and 2015, the 44th, 45th, and 46th Indian Labour Conferences, respectively, recommended for enhancement of the period of maternity leave, the introduction of maternity benefit for adopting and commissioning mothers, facility of work from home, and provision of creche facility in establishments. Thus, with the aforesaid amendments were introduced to enhance participation of women in labour force and improve work-family balance.

37. The Amendment Act, 2017, inserted sub-section (4) of Section 5 of the MB Act which is in pari materia with Section 60(4) of the 2020 Code. The provision reads thus:-

“60. Right to payment of maternity benefit.—(1) Subject to the other provisions of this Code, 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 immediately preceding the day of her delivery, and any period immediately following that day.

Explanation.—For the purposes 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, subject to the minimum rate of wage fixed or revised under the Code on Wages, 2019 (29 of 2019).

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(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 date the child is handed over to the adopting mother or the commissioning mother, as the case may be.”

38. Section 60(4) of the 2020 Code provides that a woman who legally adopts a child below the age of three months is entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting mother.

iii. Relevant precedents encapsulating judicial interpretation of maternity benefit

39. Before we delve into the discussion of judicial interpretation of scope, ambit, application of maternity benefit in varying circumstances that have come before courts, we may look at the definition of “maternity” in dictionary.

40. The Oxford English Dictionary, defines the word “maternity” as:-
“The state, condition, or fact of being a mother.”
Further, the Black's Law Dictionary (8th Ed) defines “maternity” as:-
“The character, relation, state, or condition of a mother.”

41. The aforesaid definition reflects a broader understanding of maternity in relation to motherhood and does not restrict it to the period before and after childbirth or to the age of the child.

42. We may look into the decision of B. Shah v. Presiding Officer, Labour Court, reported in (1977) 4 SCC 384, wherein this Court held that the interpretation of beneficial legislation must be guided by its underlying objective of advancing social justice. The Court emphasized that the period of maternity leave serves multiple purposes, including enabling the mother’s physical recovery, facilitating the nurturing and care of the child, and ensuring the level of her previous efficiency and output.

43. In Municipal Corpn. of Delhi v. Female Workers (Muster Roll), reported in (2000) 3 SCC 224, the claim of the female workers engaged on muster roll for maternity benefit was examined on the anvil of Articles 39, 42, and 43 of the Constitution respectively. The Court, highlighting the critical phase of motherhood, observed that the MB Act seeks to ensure that women are treated with dignity at the workplace and protected from apprehension of victimization on account of forced absence during maternity. In such circumstances, the Court underscored that employers are expected to adopt a humane and empathetic approach towards women employers. The relevant observations read thus:-

“13. Parliament has already made the Maternity Benefit Act, 1961. It is not disputed that the benefits available under this Act have been made available to a class of employees of the petitioner Corporation. But the benefit is not being made available to the women employees engaged on muster roll, on the ground that they are not regular employees of the Corporation. As we shall presently see, there is no justification for denying the benefit of this Act to casual workers or workers employed on daily-wage basis.

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33. A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their avocation and the place where they work, they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomenon in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised for forced absence during the pre-or post-natal period.”

44. This Court had the occasion to consider the interpretation of Rule 43 of the Central Civil Services (Leave) Rules, 1972 (for short, “CCS (Leave) Rules”), in Deepika Singh v. Pgimer, Chandigarh, reported in (2023) 13 SCC 681. The maternity leave sought by the appellant upon the birth of her first biological child was rejected on the ground that her spouse had two children from his previous marriage. The Court underscored that judicial interpretation must bridge the gap between law and social realities through a purposive approach. It noted that the MB Act was enacted to secure a woman’s rights both as a mother and as a worker, and the object of maternity leave is to facilitate the continued participation of women at workplace. What has been conveyed by this Court, in so many words, is that the birth of a child is a natural incident of life and that the provisions of the MB Act must be construed keeping this in mind. An atypical familial structure must not be weighed less than traditionally conforming families. The relevant observations read thus:-

“26. Unless a purposive interpretation were to be adopted in the present case, the object and intent of the grant of maternity leave would simply be defeated. The grant of maternity leave under the 1972 Rules is intended to facilitate the continuance of women in the workplace. It is a harsh reality that but for such provisions, many women would be compelled by social circumstances to give up work on the birth of a child, if they are not granted leave and other facilitative measures. No employer can perceive childbirth as detracting from the purpose of employment. Childbirth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective.

27. The predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one's familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination.”

45. In yet another case, a woman’s request for maternity leave was rejected on the grounds that there was no provision for the grant of maternity leave in respect of a third child from her second marriage. In K. Umadevi v. State of T.N., reported in (2025) 8 SCC 263, the Court interpreted the expression “two surviving children” in the relevant rules to mean children in lawful custody of the mother. While considering Section 5 of the MB Act, the Court observed that the grant of maternity benefit is not per se denied to a woman employee having more than two children. In order to effectively achieve broader social welfare goals, the Court sought to harmonize population control measures with the objective of extending maternity benefit.

46. It would be apposite to refer to the observations of the Delhi High Court in Rama Pandey v. Union of India, reported in 2015 SCC OnLine Del 10484, wherein it was noted that except the physiological changes, all other challenges faced in rearing of a child are common for all mothers. The Court rejected the submission made by the respondent that maternity leave is granted only to deal with biological changes which accompany pregnancy. It was further highlighted that the concept of maternity leave shall rest upon motherhood and welfare of the child. The relevant observations read thus:-

“17. The argument of the respondents that the underlying rationale, for according maternity leave (which is to secure the health and safety of pregnant female employee), would be rendered nugatory - to my mind, loses sight of the following: (i) First, that entitlement to leave is an aspect different from the right to avail leave. (ii) Second, the argument centres, substantially, around, the interest of the carrier, and in a sense, gives, in relative terms, lesser weight to the best interest of the child.”

47. In Dev Shree Bandhe v. C.G. State Power Holding Co. Ltd., reported in 2017 SCC OnLine Chh 1763, the petitioner, employed on probation, sought maternity leave which was declined by the respondent. The Court recognized the right to motherhood and the right of every child to full development as part of Article 21. Similarly, the Rajasthan High Court in Chanda Keswani v. State of Rajasthan, reported in 2023 SCC OnLine Raj 3274, held that the right to life includes the right to motherhood and the right of every child to full development. Thus, it was held that denial of maternity leave cannot be on the ground that the woman seeking it has given birth biologically, or has begotten a child through surrogacy or adoption.

48. In Pratiba Himral v. State of H.P., reported in 2021 SCC OnLine HP 9295, the petitioner had adopted a child and sought the benefit of maternity leave as per the CCS (Leave) Rules. While allowing the petition, the Himachal Pradesh High Court noted that one of the purposes of the leave is bonding between the child and parents. It was observed that an adopted child is not different from a biological child, thus, the way the child has come into the life of the mother is no ground to refuse maternity benefit. The relevant observations read thus:-

“11. Not only are the health issues of the mother and the child considered while providing for maternity leave, but the leave is provided for creating a bond of affection between the two. To distinguish between a mother who begets a child through adoption and a natural mother, who gives birth to a child, would result in insulting womanhood and the intention of a woman to bring up a child begotten through adoption. Motherhood never ends on the birth of the child and a commissioning mother cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through adoption. A newly born child cannot be left at the mercy of others as it needs rearing and that is the most crucial period during which the child requires care and attention of his mother. The tremendous amount of learning that takes place in the first year of the baby's life, the baby learns a lot too. A bond of affection has also to be developed.”

49. Again, the Delhi High Court in State v. Ravina Yadav, reported in 2024 SCC OnLine Del 4987, dealt with the question of whether maternity leave could be granted to a woman having two surviving children. The Court adverted to the constitutional principles flowing from Articles 39, 41, 42, and 43 of the Constitution respectively, and observed that maternity leave constitutes an important facet of the constitutional guarantee available to women. It noted that the scope of maternity leave under the CCS (Leave) Rules has gradually evolved – initially confined to biological childbirth, and subsequently extended to include paternity leave, adoption leave, and childcare leave. What is noteworthy in the observations of the Court that the concept of maternity benefit is intended to achieve social justice for women and children, and the period of leave plays a crucial role in fostering emotional bonding between the mother and the child. In this context, the Court also took note of studies indicating that stress hormone levels in children raised in orphanages are higher than those in children brought up in a familial environment. The relevant observations read thus:-

“8. The concept of maternity leave, flowing from above quoted constitutional pronouncements is a matter of not just fair play and social justice, but also a constitutional guarantee to women of this country towards fulfillment whereof, the State is duty bound to act. It is in this direction that Parliament enacted the Maternity Benefit Act, 1961 (hereinafter referred to as “the Act”), thereby consolidating the maternity protection which was earlier being provided under different State and Central enactments, embodying considerable diversity relating to the qualifying conditions, period and rate of benefits etc., to reduce which, a separate central legislation was required.

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15.2. The early infancy environment and changes have lasting effect on the development of brain in the child. Researchers across the world have observed that infants begin to bond with their mother from the moment of birth, and this social bond continues to provide regulatory emotional functions throughout adulthood. It is part of well documented research that children from deprived surroundings like orphanages have vastly different hormone levels as compared to their parent-raised peers. For instance, in Romania during 1980s, in target group aged 6 to 12 years, levels of the stress hormone Cortisol were found much higher in children who lived in orphanages for more than eight months as compared to those who were adopted at or before the age of four months.

15.3. Other researches show that children who experienced early deprivation of maternal touch had different levels of Oxytocin and Vasopressin (hormones that have been linked to emotion and social bonding), despite having spent an average of three years in a family home and this environmental change into a home does not seem to have completely overridden the effects of earlier neglect, according to medical researches published in the year 2005 in the proceedings of the National Academy of Sciences, University of Wisconsin. The Vasopressin and Oxytocin neuropeptide systems, which are critical in the establishment of social bonds and regulation of emotional behaviors are affected by early social experience.

15.4. The results of various experiments suggest a potential mechanism whose atypical function may explain the pervasive social and emotional difficulties observed in many children who have experienced aberrant care giving. The social attachments formed between human infant and her caregiver begin very early in postnatal life and play a critical role in child's survival and healthy adaptation. Typically, adults provide infants with a social environment that is fairly consistent. Caregivers learn how to recognize and respond to the infants' needs, thereby creating predictable contingencies in the environment; these regularities, in turn, make the infants' environment secure and conducive to further social learning. Multiple perceptual, sensory, cognitive, and effective systems must become synchronized so that a social bond can develop between an infant and caregiver; this bond is then reflected in the child's adaptive behavioral responses to the environment. (Reference : Paper published by the team of Department of Psychology, University of Wisconsin, led by Alison B Wismer Fries (www.pnas.org/cgi/doi/10.1073/pnas.050476 7102)).”

50. Motherhood does not end with the birth of a child. This was observed, or rather emphasized by the Chhattisgarh High Court in Lata Goyal v. Union of India, reported in 2025 SCC OnLine Chh 5572, wherein the petitioner, an employee of IIM, sought directions that adoption leave and child care leave as per the CCS (Leave) Rules be made applicable to her. The views expressed by the Court merit commendation. It observed that a woman’s right to practice a profession is a constitutional entitlement flowing from Articles 14, 15, and 21 of the Constitution respectively. It emphasized that State cannot remain oblivious to the needs and concerns of women in workforce. The Court categorically held that discrimination on the ground of the mode of bringing a child is impermissible, for the object of such leave is to dignify motherhood and ensure the healthy growth and development of the child. It refrained from distinguishing between a biological, adoptive or surrogate mother. The relevant observations read thus:-

“12. Adoptive mothers, like all mothers, are capable of experiencing deep love and affection for their children, regardless of whether they are biological or adopted. The love and affection they offer can be just as strong and profound as that of a birth mother. Adoptive mothers, like birth mothers, can form strong bonds of love and attachment with their children. These bonds can be crucial for a child's emotional and psychological well-being.

13. The participation of women in the work force is not a matter of privilege, but a constitutional entitlement protected by Articles 14, 15 and 21 of the Constitution; besides Article 19(1)(g). The “State” as a model employer cannot be oblivious to the special concerns which arise in the case of women who are part of the work force. The provision of child care leave to women sub-serves the significant constitutional object of ensuring that women are not deprived of their due participation as members of the work force. Otherwise, in the absence of a provision for the grant of Child Care Leave, a mother may well be constrained to leave the work force. This consideration applies a fortiori in the case of a mother who has a child with special needs. Such a case is exemplified in the case of the petitioner herself.

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15. There ought not to be any discrimination of a woman as far as the maternity benefits are concerned only on the ground that she has obtained the baby through adoption. The object of the leave is to protect the dignity of motherhood by providing for full and healthy maintenance to the child. Child care/child adoption leave is intended to achieve the object of ensuring social justice to women. Childhood both require special attention.

16. Not only are the health issues of the child considered while providing leave, but the leave is provided for creating a bond of affection between the two. Motherhood never ends on the birth of the child and a commissioning/adoption mother cannot be refused paid maternity leave. A woman cannot be discriminated, as far as maternity benefits are concerned, only on the ground that she has obtained the baby through surrogacy/adoption. A newly born child cannot be left at the mercy of others as it needs rearing and that is the most crucial period during which the child requires care and attention of mother. The tremendous amount of learning that takes place in the first year of the baby's life, the baby learns a lot too. A bond of affection has also to be developed.

17. There is no distinction between the natural, biological, surrogate or commissioning/adoption mothers and all of them have fundamental right to life and motherhood, contained under Article 21 of the Constitution of India and children born from the process of surrogacy/adoption have the right to life, care, protection, love, affection and development through their mother, then certainly such mothers have right to get maternity leave for above purpose.”

51. Recently, the Kerala High Court in Susan K. John v. National Board of Examinations in Medical Sciences, reported in 2026 SCC OnLine Ker 1333, held that maternity leave is a right and not a leave subject to discretion of the authorities.

52. The commonly drawn distinction between a mother who begets a child through surrogacy or adoption and a mother who naturally gives birth to a child perceives motherhood through the narrow lens of biology and fails to take into account the bond that develops between a mother and her child outside the womb, which is as crucial and intimate, as the bond that is formed inside the womb. Further, the said distinction makes motherhood contingent upon biological requirements and is a direct affront to the desire and intention of a woman to experience motherhood and bring up a child. We have no hesitation in saying that an adoptive mother like the petitioner would have the same rights and obligations towards the child as the natural mother.

53. We do not say for a moment that biological mothers and adoptive mothers form the same category. We acknowledge the distinction created by the legislature. However, the constitutional validity of the impugned provision must be tested by examining the purpose and components of maternity leave and the extent to which such purpose is served in each situation.

54. The components of maternity leave broadly consist of three elements.

55. In case of biological birth, the aforementioned three components are largely subsumed within one another and are not clearly distinguishable. The period of physical recovery often overlaps with the period during which the mother and child establish emotional attachment and the child begins to adapt to the familial setting. Whereas, in case of adoption or surrogacy, while the first component is absent, the second and third component are present and significant. The legislative recognition of maternity leave for adoptive and commissioning mothers under sub-section (4) of Section 60 is itself an acknowledgment of the importance of these components.

56. It is limpid that in the case of a biological mother, the aforesaid components, more particularly, the development of the emotional bond between the mother and the child, are often supported by physiological mechanisms which are evolutionary in nature. In the case of adoption, however, the same bond must be consciously nurtured through time, presence, and sustained caregiving.

57. It is in this context that the argument of the petitioner assumes importance that the impugned provision by introducing an arbitrary three-month time limit, deprives adoptive mothers of children older than three months, the opportunity required for the effective fulfilment of the above-mentioned second and the third components, more particularly, when the need for the same could not be said to be solely dependent on the age of the adopted child. We shall now proceed with testing the constitutional validity of the impugned provision on the anvil of the right to equality.

B. The constitutional guarantee of equality under Article 14 of the Constitution

58. Before testing the constitutional validity of a provision, more particularly, where it is alleged that it violates fundamental rights, it is necessary to ascertain the true nature, character and impact of the provision on the object and intention of the legislation. Thus, the courts have to look behind the form and appearance of the provision. In other words, the purport and intent of the legislation has to be determined.

a. Purpose of social security benefits

59. The discussions in the foregoing paragraphs establishes that the purport and intent of the MB Act, now forming part of the 2020 Code, is to dignify motherhood, safeguard maternal well-being, while ensuring continued participation of women in the workforce. The said Act is a legislative recognition of the physical, emotional, and social dimensions of motherhood, and accommodates the pivotal role it plays in a woman’s life. By providing institutional support, the MB Act endeavours to harmonize professional obligations with familial responsibilities in order to promote an environment in which both the mother and the child would thrive.

60. In 2020, the MB Act, along with other laws relating to social security, were consolidated in order to extend social security coverage to all persons working in both the organized and unorganized sectors uniformly. Social security benefits guarantee labour and economic protection against loss of work due to illness, disability, death of family members, old age, unemployment, and maternity.

61. In the case at hand, we are concerned with maternity benefit. With the increasing participation of women in the workforce, there emerged a growing recognition of economic contribution by women, and of the substantial loss of income when their employment was interrupted. Thus, social security is intended to provide protection against contingencies that impair a person’s capacity to actively participate in work.

62. In the aforesaid context, maternity is one such contingency, as it involves temporary physical, emotional, and economic vulnerability. In other words, maternity benefit form an integral component of the social security framework, aimed at ensuring economic security, safeguarding maternal health, and promoting welfare of the child.

63. In this backdrop, we shall now address the first submission canvassed on behalf of the petitioner with regard to the violation of Article 14 of the Constitution. It was submitted that Section 60(4) of the 2020 Code creates an unreasonable classification among adoptive mothers. In other words, the petitioner argued that the classification between a woman adopting a child aged less than three months and a woman adopting a child aged three months or more is artificial and violative of Article 14.

i. Examining validity of the impugned provision through the test of permissible classification

64. The law on classification is well settled and does not require restatement in extenso. While Article 14 of the Constitution permits classification, such classification must rest upon a real and substantial distinction. In other words, the differential treatment accorded to one group vis-à-vis another must bear a rational relation to the object sought to be achieved by the legislature. Any classification lacking a substantial and intelligible basis is arbitrary and violative of the equality guarantee under the Constitution. Thus, Article 14 mandates that the law must operate equally on all persons under like circumstances.

65. Although classification by its very nature is discriminatory, yet equality, in cases involving classification, is treatment afforded after due regard to the nature, attainment or circumstances of the group concerned, so as to cater to its specific needs. It could be said that classification is an expression of substantive equality. We say so because individuals form a group, and a group is classified on the basis of some qualities or characteristics found in all persons and not in others, and such classification must have relation to the object of the legislation. In this context, this Court in State of W.B. v. Anwar Ali Sarkar, reported in (1952) 1 SCC 1, observed thus:-

“85. It is now well established that while Article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an “abstract symmetry” in the sense that every piece of legislation must have universal application. All persons are not, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been construed as a guarantee against discrimination amongst equals only and not as taking away from the State the power to classify persons for the purpose of legislation. This classification may be on different bases. It may be geographical or according to objects or occupations or the like. Mere classification, however, is not enough to get over the inhibition of the article. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while the article forbids class legislation in the sense of making improper discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense I have just explained. The doctrine, as expounded by this Court in the two cases I have mentioned, leaves a considerable latitude to the Court in the matter of the application of Article 14 and consequently has the merit of flexibility.”

66. We may refer to and rely upon the decision of this Court in State of Gujarat v. Shri Ambica Mills Ltd., reported in (1974) 4 SCC 656, wherein a Constitution Bench explained the characteristics of “reasonable classification”. It stated that a classification would be termed reasonable when it includes all those who are similarly situated with regards to the purpose of such classification and none who are not. In other words, a classification must not either be under inclusive or over inclusive. The relevant observations read thus:-

“53. The equal protection of the laws is a pledge of the protection of equal laws. But laws may classify. And the very idea of classification is that of inequality. In tackling this paradox the Court has neither abandoned the demand for equality nor denied the legislative right to classify. It has taken a middle course. It has resolved the contradictory demands of legislative specialization and constitutional generality by a doctrine of reasonable classification.

54. A reasonable classification is one which includes all who are similarly situated and none who are not. The question then is: what does the phrase “similarly situated” mean? The answer to the question is that we must look beyond the classification to the purpose of the law. A reasonable classification is one which includes all persons who are similarly situated with respect to the purpose of the law. The purpose of a law may be either the elimination of a public mischief or the achievement of some positive public good.

55. A classification is under-inclusive when all who are included in the class are tainted with the mischief but there are others also tainted whom the classification does not include. In other words, a classification is bad as under-inclusive when a State benefits or burdens persons in a manner that furthers a legitimate purpose but does not confer the same benefit or place the same burden on others who are similarly situated. A classification is over-inclusive when it includes not only those who are similarly situated with respect to the purpose but others who are not so situated as well. In other words, this type of classification imposes a burden upon a wider range of individuals than are included in the class of those attended with mischief at which the law aims.

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64. Laws regulating economic activity would be viewed differently from laws which touch and concern freedom of speech and religion, voting, procreation, rights with respect to criminal procedure, etc. The prominence given to the equal protection clause in many modern opinions and decisions in America all show that the Court feels less constrained to give judicial deference to legislative judgment in the field of human and civil rights than in that of economic regulation and that it is making a vigorous use of the equal protection clause to strike down legislative action in the area of fundamental human rights.

65. The question whether, under Article 14, a classification is reasonable or unreasonable must, in the ultimate analysis depend upon the judicial approach to the problem. The great divide in this area lies in the difference between emphasising the actualities or the abstractions of legislation. The more complicated society becomes, the greater the diversity of its problems and the more does legislation direct itself to the diversities. Statutes are directed to less than universal situations. Law reflects distinctions that exist in fact or at least appear to exist in the judgment of legislators — those whose have the responsibility for making law fit fact. Legislation is essentially empiric. It addresses itself to the more or less crude outside world and not to the neat, logical models of the mind. Classification is inherent in legislation. To recognise marked differences that exist in fact is living law; to disregard practical differences and concentrate on some abstract identities is lifeless logic.”

67. What flows from the aforesaid decision is that under-inclusiveness in classification refers to a situation when classification confers benefits on certain persons in furtherance of a legitimate purpose but fails to extend the same benefits to others who are similarly situated, without a justification. Such a manner of classification renders it unreasonable and volatile when examined through the test of permissible classification under Article 14.

68. In this regard, it would be apposite to refer to the decision in Pravinsinh Indrasinh Mahida v. State of Gujarat, reported in 2021 SCC OnLine Guj 1293, wherein the Gujarat High Court while dealing with the challenge to the legality and constitutional validity of the Gujarat Cooperative Societies (Amendment) Act, 2019, emphasized on the principle of “similarly situated” expounded by this Court in Shri Ambica Mills Ltd. (supra). The State attempted to exclude sugar factories from the purview of Section 74C of the said Act. The Court found the classification of sugar factories arbitrary, looking at the intention of the Section 74C and the object sought to be achieved through the classification, i.e., administrative exigency or saving money. In this context, the Court noted that a reasonable classification is one which includes all individuals who are similarly situated with regards to the purpose of the law. It was observed that the government cannot create a classification by excluding one category when both categories belong to the same genus. The relevant observations read thus:-

“75. Thus, the ratio discernible from the above referred judgment of the Supreme Court and the same can be made applicable to the case on hand is that the Government cannot create sub-classification thereby excluding one sub-category, even when both the sub- categories are of the same genus. If that is done, it would be considered as violating the equality clause enshrined in Article 14 of the Constitution. The Supreme Court proceeded to observe that the judicial review of such notifications is permissible in order to undertake the scrutiny as to whether the notification results in invidious discrimination between two persons though they belong to the same class.

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80. Article 14 has two clear facets which are invalid. One is over classification and the other is under classification, which is otherwise, over inclusiveness or under inclusiveness. The judicial review of over classification should be done very strictly. In the cases of under classification when the complaint is either by those who are left out or those who are in i.e. that the statute has roped him in, but a similarly situated person has been left out, it would be under inclusion. It is to say that you ought to have brought him in to make the classification reasonable. It is in such cases that the Courts have said that who should be brought in, should be left to the wisdom of the legislature because it is essentially a stage where there should be an element of practicality.”

69. At this stage, it would be apposite to state that, in order to pass the test of permissible classification, the distinction drawn by the impugned provision or legislation must not only bear a rational nexus with the object sought to be achieved by the Act, but the classification must also be inclusive of all similarly situated individuals.

70. We may look at the decision in Citizenship Act, 1955, Section 6-A, In re, reported in (2024) 16 SCC 105, wherein this Court held that the factors for determining a class are decisive in assessing whether a provision is under-inclusive or over-inclusive. Such factors must bear a rational nexus with the object and intent of the statute and must be in consonance with constitutional principles. It was further held that it is incumbent on the State to include all persons within the classification who satisfy the prescribed criteria for classification. Any exclusion of similarly situated individual must be justified, and the degree of justification required to be discharged by the State is substantially higher in a matter affecting individual rights than that applicable in matters of economic policy. The relevant observations read thus:-

“472.3. The determination of the yardstick for classification will help in the assessment of whether a provision is underinclusive or overinclusive. The yardstick must have a nexus with the object and must be in consonance with constitutional principles. If the yardstick satisfies the test, then the State must determine if all persons/situations similarly situated based on the yardstick have been included. The State must on the submission of cogent reason justify if those who are similarly situated have not been included (underinclusiveness) or those who are not similarly situated have been included (overinclusiveness). The degree of justification that the State is required to discharge depends on the subject-matter of the law, that is whether the matter deals with economic policy or fiscal matters, whether it is a beneficial provision such as a labour provision or whether it deals with the core or innate traits of individuals. The degree of justification is the least for economic policy, higher for a beneficial provision and the highest if it infringes upon the core or innate trait of individuals.”

71. In the aforesaid context, the observations in Pravinsinh Indrasinh Mahida (supra), succinctly explain the distinction between the intent of the legislation and legislative intention. It underscored that while the legislation intends to remedy a malady, the legislative intention related to the meaning or exposition of the remedy. Insofar as the test for permissible classification is concerned, the rational nexus of the classification is juxtaposed against the intention of the legislation. The relevant observations read thus:-

“84. In the aforesaid context, we may refer to and rely upon a decision of the Supreme Court in the case of Hiral P. Harsora v. Kusum Narottamdas Harsora reported in (2016) 10 SCC 165...

“15. It is first necessary to discern the true purpose or object of the impugned enactment because it is only with reference to the true object of the enactment that the existence of a rational nexus of the differentia on which the classification is based, with the object sought to be achieved by the enactment, can be examined to test the validity of the classification...
16. There is thus a clear distinction between the two. While the purpose or object of the legislation is to provide a remedy for the malady, the legislative intention relates to the meaning or exposition of the remedy as enacted...”

72. With a view to dispel any doubt and lend clarity, we deem it appropriate to observe that the legislature is within its right to create a classification and decide the basis thereof. However, the scope and limits of judicial scrutiny in examining such classification must be borne in mind. The degree of deference, or rather restraint exercised by courts in case of classification by the State is elucidated by this Court in State of T.N. v. National South Indian River Interlinking Agriculturist Assn., reported in (2021) 15 SCC 534. There is no doubt that courts ordinarily accord a high degree of deference to legislative decisions with regards to economic matters. However, when classification affects substantive rights and operates in an under-inclusive manner, judicial deference stands correspondingly diminished. The relevant observations read thus:-

“11. However, it is settled law that the Court cannot interfere with the soundness and wisdom of a policy. A policy is subject to judicial review on the limited grounds of compliance with the fundamental rights and other provisions of the Constitution...

32. While non-classification arbitrariness is tested based on the proportionality test, where the means are required to be proportional to the object, classification arbitrariness is tested on the rational nexus test, where it is sufficient if the means share a “nexus” with the object...”

73. What is discernable from the aforesaid discussion is that the distinction created by Section 60(4) of the 2020 Code between a woman legally adopting a child below the age of three months and those who adopt a child aged three months or above must have a rational nexus with the intention and object of the 2020 Code.

74. The learned ASG on behalf of the respondents submitted that the impugned provision has been framed with an objective to strike a balance between the rights of adoptive mothers and the concerns of the employers. He further submitted that the classification under the impugned provision is reasonable as a child older than three months does not have the same intensive dependency on the caregiver.

75. Undoubtedly, the fundamental objective of the 2020 Code is to recognize human dignity by guaranteeing labour and economic protection to persons who are temporarily deprived of their capacity to fully participate in the workforce. There is no gainsaying that the protection granted earlier under the MB Act, and now subsumed within the 2020 Code, has been conceived with due regard to the multifaceted role of a woman as a mother.

76. The legislation acknowledges the indispensable contribution of a woman in familial stability, her responsibility in nurturing and caring for a child, and the physical and emotional demands attached to motherhood. By providing income security and institutional support during this critical phase, the legislation seeks to ensure that motherhood does not operate as a source of disadvantage at a work place, but is instead accommodated as a socially valuable function warranting protection and respect.

77. The purpose of maternity leave neither varies with the nature of employment nor with the manner in which the child is brought into the life of the mother. When we look closely, the natural effect of maternity benefit is to facilitate the physical and emotional adjustment of a mother, ensure the welfare and holistic development of a child, and promote bonding between parents and children during the crucial initial phase of family integration.

78. Thus, taking into consideration the aforementioned object and intention of the 2020 Code, could it be said that women adopting a child aged three months or above do not require the same protection as is afforded to women adopting a child below the age of three months? The answer is an emphatic ‘No’. We say so because the object of maternity benefit is not associated with the biological process of childbirth alone but also takes into account a holistic understanding of attainment of motherhood and consequent fulfillment of the role.

79. What flows from the aforesaid is that the need for economic security, institutional support, and protection of dignity does not diminish merely on account of the age of the child at the time of adoption. The necessity of nurturing, care, and family integration remains equally relevant and pressing irrespective of whether the adopted child is below or above the age of three months.

80. In light of the object of the 2020 Code, women who adopt a child aged three months or above are similarly situated to women who adopt a child below the age of three months, insofar as their roles, responsibilities, and caregiving obligations are concerned. The essential attributes, capacities, and commitments of adoptive mothers do not undergo any material change merely on account of the age of the child at the time of adoption and the immediate period following the adoption.

81. We are of the considered view that the distinction drawn by Section 60(4) of the 2020 Code, does not have a rational nexus with the underlying beneficial object of the statute. The submission canvassed on behalf of the respondents proceeds on a narrow and restrictive understanding of adoption by limiting it to “caregiving responsibilities” towards an infant. Such a view disregards the bilateral process of adjustment and integration of the adopted child with the adoptive family. This disparity not only marginalizes the role that adoptive parents play in the life of the child but also reduces the recognition of their responsibilities.

82. While adoption may not involve the physical tribulations associated with the biological process of giving birth, or intensified caregiving responsibilities for an infant, the psychological and emotional factors assume significant importance, thereby requiring the mother to devote time to forge the bond of motherhood with the adopted child. A general approach which fails to consider the nuances associated with modern parenting would denigrate the understanding of motherhood, which flows from the status of being a mother and not merely from the manner of its attainment. Such an approach would also inevitably disregard the welfare of the child.

83. The process of adoption itself entails significant emotional, psychological, and practical adjustments for both the child and the adoptive mother. Children adopted at any age require sustained care, reassurance, and stable parental presence to overcome past vulnerabilities and integrate into a new familial environment. This is even more imperative to allow such mothers to avail themselves of the leave. In such circumstances, denying maternity benefit solely on the basis of an arbitrary age threshold disregards these essential aspects of adoption and undermines the very purpose of social welfare legislation.

84. The absence of an age limit assumes greater importance when we consider the position of children with disabilities. It is a matter of common knowledge that children with disabilities often wait considerably longer to be adopted as compared to other children. The process of identifying adoptive parents, ensuring that they are capable of providing the required care, and completing the necessary formalities would ordinarily take longer.

85. In such circumstances referred to above, confining the benefit of maternity leave where a child is adopted at a prescribed age would operate to the detriment of children with disabilities. It would also discourage the prospective parents from adopting children who require their presence during the initial period of adjustment. The need for parental presence, patience, and emotional support is often more pronounced in the case of children with disabilities. Thus, in such circumstances, in absence of any parental leave, maternity benefit leave enables the adoptive mothers to devote adequate time towards nurturing, rehabilitation, and emotional bonding with the child.

86. This issue also assumes a distinct dimension in the case of single adoptive mothers. Unlike in a traditional family setup where caregiving responsibilities may be shared between two parents, a single adoptive mother bears the entire responsibility of integrating the child into the family environment while simultaneously discharging her professional obligations.

87. In the absence of adequate maternity benefit, a single adoptive mother may be compelled to choose between her employment and the immediate needs of the adopted child. Such a predicament undermines the very purpose of social welfare legislation designed to support working women. The law cannot overlook the practical realities. In such circumstances, extending the benefit of maternity leave is not merely a matter of convenience but a necessary support that enables the woman to discharge her parental responsibilities while securing her economic independence.

88. In such a view of the matter, an age limit fails to account for the diverse realities of adoption. The needs of children and adoptive families are neither uniform nor reducible to an understanding of adoption in a typical familial structure. A provision that fails to accommodate these realities undermines the objective of the legislation and is prone to constitutional attacks.

89. Another aspect which deserves to be mentioned is the absence of any graded entitlement to maternity benefit in the impugned provision. In other words, while women adopting children younger than three months are entitled to maternity benefit for a period of 12 weeks, women adopting children even a day older than three months are not entitled to maternity benefit to any extent. This approach adopted by the legislature while enacting the impugned provision does not reflect the real-world requirement of care and nurturing, which does not come to a sudden halt upon the attainment of a certain mathematical number, but gradually tapers with the proper integration of the child with the new environment, especially the parents. While it could be argued that the legislature could have provided for a graded entitlement to maternity benefits dependent upon the age of the child, however, such a situation does not arise for consideration in lieu of the either-or approach adopted by the legislature in the impugned provision.

90. The impugned provision also fails in including all those who are similarly placed, i.e., adoptive mothers. Thus, although the classification expressed in the words, “a woman who legally adopts a child…shall be entitled to maternity benefit for a period of twelve weeks”, seeks to give a benefit in recognition of gender equity, and in that sense, it bears a rational relation to the intention and object of the statute, yet it nonetheless fails to conform to constitutional principles of equality because it qualifies such benefit to “a woman who legally adopts a child below the age of three months”. Thus, it leaves all the similarly situated women who legally adopt a child aged three months or above.

91. We are of the view that the impugned provision, i.e., Section 60(4) of the 2020 Code, to the extent that it prescribes an age limit of three months, is discriminatory because first, it does not disclose a reasonable distinction between women who adopt a child below the age of three months and those who adopt a child aged three months or above. Secondly, the particular differentiation, which is sought to be made, has no nexus with the object sought to be achieved. Thirdly, the classification suffers from under-inclusiveness.

92. Section 60(4) of the 2020 Code, in effect, operates unequally upon adoptive mothers who are similarly situated, resulting in discrimination without reasonable justification. As a necessary consequence, Section 60(4) of the 2020 Code violates the mandate of equality enshrined under Article 14 of the Constitution. The classification under the Act is palpably unreasonable and arbitrary.

93. When the Amendment Act, 2017, was introduced by the then Minister for Labour and Employment, this very issue was raised during the debates. Although a query was posed regarding the yardstick adopted for capping the age of a child at three months for an adoptive mother to avail maternity benefit, yet it was left unanswered. The question reads thus:-

“[…]Apart from that, there is a criterion for the commissioning mother and for a mother adopting legally, if I understand it correctly that the child must be less than three months. Now, what I do not understand is that what is the reason for that criteria. Today, if I have four month old child which I have got through surrogacy or which I have got through adoption, why should this law discriminate against a child which is four or five months? If there is any justification for it, then I hope that the Hon. Minister will clarify what that justification is.[…]”

94. Another submission was canvassed by the respondents that in case an adoptive mother adopts a child aged more than three months, she can avail benefit of the crèche facilities available at her establishment. The submission although seemingly appears to be lucrative yet the same in our considered opinion is flawed for the following reasons.

95. The limitation of Section 67 of the 2020 Code, in the particular circumstances, lies in the fact that the statutory obligation of an establishment to provide crèche facility arises only when there are fifty employees. A large number of establishments, more particularly, smaller establishments, therefore fall outside the ambit of this requirement, leaving a significant section of working women without access to such facilities.

96. Further, there is no gainsaying that the provision of a crèche facilities within an establishment is not a substitute for maternity leave. The realization of the right of maternity benefit must not be contingent on the number of employees. Maternity leave serves a distinct purpose, as elucidated in the foregoing paragraphs of this judgment. A crèche facility, on the other hand, merely provides a place for the child to remain during working hours and cannot replace the indispensable presence and care of the mother during this period.

97. When the benefit of maternity leave is not granted to all mothers, in some situations, she may be compelled either to leave the child at home, rely on the assistance of an older sibling, or take the child with them to the workplace, thereby compromising the child’s health and safety. Where the older sibling is a girl child, such arrangements often result in her being withdrawn from school, which reinforces the vicious cycle of gender inequality.

98. In light of the aforesaid discussion, we may look into the decision of Werner Van Wyk & Ors. v. Minister of Employment and Labour, reported in [2025] ZACC 20. The challenge before the Constitutional Court of South Africa was with regards to the constitutional validity of Sections 25, 25A, 25B and 25C of the Basic Conditions of Employment Act (“BCEA”) respectively. The provisions largely dealt with maternity and parental leave. The challenge to Section 25B is of some relevance to us, as it capped the age of a child being adopted at 2 years in order for the adoptive parent to avail parental leave.

99. In Werner Van Wyk (supra), the respondent conceded that the provision is violative of the right to human dignity of persons, more particularly, of women who are not biological mothers. The Court was of the view that the human dignity of such persons is violated because they are not afforded the same protection as biological mothers.

100. The Court applied the principle of permissible classification to assess whether the differentiation between parents on the basis of the child’s age was constitutionally and statutorily valid, observing that children above two years are denied the opportunity to adjust or integrate into the family.

101. The Court further observed that the need for adjustment to a new environment cannot be negated. It rejected the submission on behalf of the respondent that the provision attempts to place adoptive parents on the same pedestal as biological parents.

102. Most importantly, while equating the leave available to adoptive parents with that granted to biological parents, the Court emphasized the difference in the underlying purpose of leave in the case of adoptive parents as opposed to biological parents and surrogate parents. The Court declared the age limit of two years as unconstitutional, and left it to the legislature to determine a reasonable age limit, if any, in accordance with constitutional principles.

103. It would also be apposite to refer to the decision by the European Court of Human Rights in Topčić-Rosenberg v. Croatia, Application no. 1939/11, concerning the non-grant of maternity leave to an adoptive mother of a three-year-old child.

104. The Court held that Article 14 read with Article 8 of the Convention squarely applied to the case. It did not see a reasonable justification behind difference in treatment between an adoptive mother and a biological mother.

105. The net effect of the aforesaid discussion is that the absence of a biological connection does not diminish the depth of their bond. We cannot emphasize more on the fact that motherhood is ultimately shaped through affection, selfless care, and not through blood alone.

C. The right to a dignified life for adoptive parents and adopted child under Article 21 of the Constitution

i. Adoption as an expression of reproductive autonomy

106. The second submission canvassed on behalf of the petitioner is that the impugned provision violates the adoptive mothers’ and adoptive children’s right to live life with dignity as enshrined under Article 21 by denying the mother the right to motherhood and the adoptive children the right to receive sufficient care to be rehabilitated and integrated into his/her new family.

107. Although biology has traditionally been the predominant lens through which kinship and family relationships are understood, yet non-biological modes of building a family are no less legitimate or meaningful. The decision to adopt may be motivated by a variety of personal, social, or humanitarian reasons. Thus, adoption is an equally valid pathway for the creation of a family.

108. In such circumstances referred to above, an adopted child is no different from a so-called “natural” child, the only distinction is that the process of adoption is more visible and legally acknowledged.

109. A three Judge Bench of this Court in Suchita Srivastava v. Chandigarh Admn., reported in (2009) 9 SCC 1, affirmed the reproductive rights of the appellant-victim, noting that a woman's right to make reproductive choices is a dimension of personal liberty under Article 21.

110. We may look into the decision of K.S. Puttaswamy (Privacy-9J.) v. Union of India, reported in (2017) 10 SCC 1, wherein this Court recognized the multifaceted nature of the right to privacy, which encompasses decisional autonomy in matters relating to intimate personal choices like reproduction and family life.

111. In X2 v. State (NCT of Delhi), reported in (2023) 9 SCC 433, this Court observed that the bouquet of reproductive rights encompasses at the very least the right of women to have or not have children, forming an integral part of personal liberty.

112. What can be discerned from the above discussion is that when family structures and modes of parenthood have evolved and diversified, parenthood is not confined to the biological act of giving birth.

113. In the aforesaid context, reproductive autonomy, therefore, cannot be narrowly understood as being limited to biological reproduction alone. Adoption, too, represents a conscious and meaningful exercise of the choice to create and nurture a family.

114. The protection of maternity benefit cannot be confined keeping in mind the age of the child. More so, when this benefit seeks to support motherhood and the welfare of the child, it must extend to adoptive mothers who undertake the equally significant responsibilities.

115. We are at one with the learned counsel appearing on behalf of the petitioner that the impugned provision, by stipulating an age limit, fails to recognize the right of reproductive autonomy of those adoptive mothers who adopt a child aged three months or more.

116. A mother takes birth the day a child comes into her life. While the day of the entry of the child in the mother’s life slightly varies in case of biological route, what follows after is a universal feeling, shared by all mothers - whether adoptive, surrogate or biological.

117. Recently, in K. Umadevi (supra), Ujjal Bhuyan, J., succinctly highlighted the constitutional support to social security benefits through the Directive Principles of State Policy, notably Article 42 and Article 51.

ii. Scope and application of the principle of “best interest of the child”

118. For this particular discussion, it would be worthwhile to refer to the observations made by this Court in Lakshmi Kant Pandey v. Union of India, reported in (1984) 2 SCC 244, noting that every child has the right to grow up in a loving and caring family, and the best interest of the child shall be the paramount consideration.

119. We must now advert to the definition of “best interest of child” as given under Section 2(9) of the JJ Act:
““best interest of child” means the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development”

120. Further, Section 3 of the JJ Act states that all the authorities while implementing the provisions of JJ Act shall be guided by the principle of best interest of child.

121. We may also look into the relevant regulations of the CARA Regulations. Regulation 3 stipulates that the child's best interests shall be of paramount consideration while processing any adoption placement.

122. Thus, the common thread flowing across the aforesaid provision is that the principle of the best interests of the child constitutes the core of all laws and policies concerning children.

123. On a plain reading of the aforesaid provisions, it is limpid that every child must be given the opportunity to grow in an environment that nurtures their potential, emotional, and intellectual development.

124. In Dasari Anil Kumar v. Child Welfare Project Director, reported in 2025 SCC OnLine SC 1689, this Court directed that the custody of children be restored to the adoptive parents, keeping in view the principle of the best interest of the child.

125. In this context, we may also refer to a decision by Labour Court of South Africa in MIA v. State Information Technology Agency (Pty) Ltd., [2015] ZALCD 20, holding that maternity leave must of necessity be interpreted to take into account the best interests of the child.

126. We may also look into the decision by the House of Lords in In re P & Ors., [2008] UKHL 38, holding that rules excluding unmarried couples from adoption were discriminatory and violative of the best interests of the child.

127. Similarly, the South African Constitutional Court in Suzanne Du Toit and Vos v. Minister for Welfare and Population Development, (2002) 13 BHRC 187, held that excluding same-sex unmarried couples from adopting violated the best interest of the child.

128. The overarching theme emerging from these judgments is that the law across the globe recognizes that the best interest of the child must remain the paramount consideration in all decisions affecting a child.

129. In the aforesaid context, the principle of the best interests of the child does not conclude with the completion of the formalities of adoption. It is a continuing obligation that persists throughout the period a child remains a child.

130. When Section 60(4) of the 2020 Code imposes an age limit of three months for the availment of maternity benefit by an adoptive mother, it fails to adequately account for these continuing dimensions of the child’s welfare.

D. Examining validity of the impugned provision through its workability

131. We may look at the matter from one another angle. The learned counsel appearing for the petitioner vehemently submitted that Section 60(4) of the 2020 Code fails to take into consideration the time required for completing the procedure for adoption of orphaned, abandoned, or surrendered children under the JJ Act and the CARA Regulations.

132. The adoption process ordinarily takes 2 months or more to be completed. Consequently, by the time the child is legally placed with the adoptive mother, the statutory age limit would, in most cases, stand exhausted, thereby, rendering the provision largely otiose.

133. The substantial amount of time in the adoption timeline is devoted to allowing parents/guardians to reconsider surrender, or making sincere efforts to trace biological parents/guardians for abandoned children.

134. We lay much emphasis on the fact that this timeline cannot be compromised, having regard to the sensitive nature and the serious legal consequences that follow once a child is declared legally free for adoption.

135. In this regard, the respondents have submitted that in order to expedite the adoption process, district magistrates and additional district magistrates have been conferred with the power to issue adoption orders. We discourage this understanding of the adoption process.

136. The conferment of such powers is intended to streamline procedural bottlenecks. This does not warrant the curtailment of the safeguards embedded in the statutory scheme designed to prioritize the best interests of the child.

137. We shall now turn to the legal discussion concerning this issue. In adjudging the validity of a provision, the existing conditions in which the law is to be applied cannot be ignored.

138. If a provision is framed without due regard to the administrative conditions in which it is to operate, the intention of the legislation would stand frustrated.

139. It is well settled that the law cannot be merely symbolic or rather illusory. A legislative provision, more particularly, one which is beneficial in nature, must be capable of meaningful implementation.

140. It would be worthwhile to refer to the observations made by this Court in State of Kerala v. Unni, reported in (2007) 2 SCC 365, regarding the workability and practical application of statutes.

141. In this context, by the time a child is declared legally free for adoption, the child is unlikely to remain within the narrow age threshold (three months) contemplated by the provision, rendering the benefit largely inaccessible.

142. This issue was highlighted in Temple of Healing v. Union of India, W.P.(C) No. 1003/2021, calling attention to delays in CWCs defining the legal status of children.

143. This Court should not remain oblivious to such ground realities where a beneficial legislation is framed in a manner that prevents beneficiaries from receiving its benefits.

144. Thus, a provision which cannot be effectively applied may result in the law becoming illusory in operation.

145. At this stage, we deem it appropriate to observe that the legislature bears the responsibility of ensuring that the law it enacts is capable of being implemented and accessed.

E. Institutional invisibility of household and care work

146. This provides us with the segue to address yet another aspect of rationale behind conferring maternity benefit upon adoptive mothers irrespective of the age of the adopted child.

147. It is not an unknown phenomenon that women often sacrifice earnings and career progression for childbirth and child care, including attending to daily needs, feeding, medical visits, etc.

148. Such work of indispensable nature for the functioning of the family is performed without any explicit remuneration, enabling other members to participate productively at their workplace.

149. In this regard, we may refer to what is called the Wollstonecraft Dilemma, referring to the tension between recognizing women’s role as caregivers and ensuring their equal participation in the workforce.

150. This communicates that it would be unreasonable to treat women identically to men without acknowledging social realities, while conferring maternity benefit acknowledges these caregiving realities.

151. Studies by the ILO (“Women at Work: Trends 2016”) and research papers (“Valuation of Unpaid Household Activities in India”) highlight the gendered nature of household responsibilities and the economic significance of unpaid care work.

152. These caregiving responsibilities do not change when a woman adopts a child aged three months or above; on the contrary, they are heightened to integrate the child within the family.

153. The initial months following the arrival of a child require time, attention, and rearing responsibilities to ensure the well-being of the child.

154. In such circumstances, the absence of adequate economic protection places an unreasonable burden upon women attempting to balance caregiving at home and presence at the workplace.

F. Highlighting the importance and need for paternity leave

155. There exists a kind of injustice, based on deep-rooted assumptions, where society has historically attributed caregiving responsibilities almost exclusively to mothers, overlooking the equally significant role of a father.

156. Parenthood is a shared responsibility. The acceptance of a father's absence during infancy has seldom been examined with seriousness, bearing a cost on children, fathers, and mothers alike.

157. The early months of a child’s life constitute a formative period where the presence of a father contributes significantly to psychological well-being, which cannot be compensated for later.

158. Proximity is not identical to presence. Professional constraints depriving fathers of early engagement affect the foundation of emotional security and attachment.

159. Traditionally perceived merely as financial providers, fathers have been undervalued in terms of their need for leave for everyday nurturing.

160. The absence of paternity leave reinforces gendered roles. When afforded leave, fathers can support mothers, share family responsibilities, and remain emotionally present.

161. A provision for paternity leave serves an important purpose by dismantling gendered roles, encouraging active childcare, and promoting gender equality within family and workplace.

162. It also advances the best interests of the child when both parents play meaningful and complementary roles.

163. At present, Sections 43A and 43AA of the CCS (Leave) Rules grant male government servants 15 days of paternity leave for childbirth or adoption.

164. The concept of paternity leave is less recognized, though private member Bills like The Paternity and Parental Benefit Bill, 2025 have been introduced.

165. A child experiences closeness as a natural state; the quiet cost of a father's absence due to work requirements is later reflected in their relationship.

V. CONCLUSION

166. A conspectus of our discussion in the aforesaid section is as follows:-

167. For all the foregoing reasons, we have reached the conclusion that Section 60(4) of the 2020 Code insofar it puts an age limit of three months on the age of the adoptive child, for the adoptive mothers to avail maternity benefit under the 2020 Code is violative of Articles 14, and 21 of the Constitution respectively.

168. Therefore, the sub-section (4) of Section 60 of the 2020 Code should now be meaningfully read as:-

“(4) A woman who legally adopts a child 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.”

169. In light of the aforesaid discussion on the need of paternity leave, we urge the Union to come up with a provision recognizing paternity leave as a social security benefit. We emphasize that the duration of such leave must be determined in a manner that is responsive to the needs of both the parent and the child.

170. In the result, the petition stands allowed in the aforesaid terms. Pending application(s), if any, also stand disposed of.