Right to paternity leave to parent basic human right of the child: Madras HC

The Madras High Court has asked the policy makers to recognise right to paternity leave or parental leave to the biological or adoptive parents, as the basic human right of the respective prenatal or post natal child.

A single judge bench of Justice L Victoria Gowri noted that in the context of Indian life, though the words maternity and paternity sound synonymous to motherhood and fatherhood, the survival of a child vests with the joint responsibility of the family as a whole.

"Since the days of joint family system has almost diminished/eroded and when the challenges of nuclear families are unprecedented in India, it is high time for the policy makers to recognise right to paternity leave/parental leave to the biological/adoptive parents, as the basic human right of the respective prenatal/post natal child," the bench said.

The court was hearing a writ petition filed by a Tamil Nadu police inspector who assailed a desertion order passed against him as he failed to report to the duty as he sought to leave to attend his wife and the child born after IVF procedure.

The bench said considering the unusual nature of this case, where a dutiful husband has sought for paternity leave before the competent authority, only for the purpose of taking care of his pregnant wife, at the time of complicated delivery procedure by IVF treatment, the competent authority ought to have granted leave as sought by him in his application from May 01, 2023 to June 15, 2023. However, such an order was not passed, but he was permitted to avail unearned Leave on private affairs only for one month.

The court quashed the desertion order and directed the authorities to consider his case and pass an order reinstating him as Inspector of Police.

"I am inclined to gracefully consider the petitioner’s IVF child’s right to life and protection of life as guaranteed under Article 21 of the Constitution of India. The petitioner’s child’s right to live, survive, health and development of childhood which flows from Article 21 of the Constitution of India, guarantees the petitioner’s right to seek paternity leave to attend his wife’s delivery," the judge said.

The bench said the action of the respondents authorities in cancelling and refusing paternity leave to the petitioner would amount to violation of Article 21 of the Constitution of India.

"Though paternity/paternal leave are a kind of labour law benefit, the same has stemmed up from the right of a child to be protected under Articles 14, 15(3) and 21 of the Constitution of India," the bench said.

The court further said the right to life of a child is guaranteed under Article 21 of the Constitution of India.

"The development of a child commences from the pre-natal care days, that is from the day one of the mother’s pregnancy and continues all along the post natal care days, till the age of attaining majority. The role of both the mother and father during the prenatal care and post-natal care days gains importance from the perspective of the child’s right to survive. A welfare state is at the bounden duty to provide the foetus with a dignified pre-natal care and the child with proper health care, hygiene and sanitation in the post-natal care days," the bench said.

The court further opined perhaps grant of maternity/paternity leave to the biological parents and paternal leave to the adoptive parents is to ensure proper pre-natal/post-natal care, upholding the child’s right to protection of life as guaranteed under Article 21 of the Constitution of India.

"The right to protection of life guaranteed to every child by Articles 21 and 15(3) of the Constitution of India, culminates in the fundamental human right of the biological parents/adopting parents seeking maternity/paternity/parental leave," the bench said.

Case Title : B Saravanan v. DIG Tiruveneli