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The challenge is on the ground that the provision grants maternity benefits granted to the adoptive mother is conditional on the age of the child.

A writ petition has been filed in the Supreme Court challenging section 5(4) of Maternity Benefit Act, 1961, on ground that it makes maternity benefits of the adoptive mother conditional on the age of child being adopted.

The provision entitles mothers who are adopting a child below the age of three months, maternity period benefit for a period of 12 weeks from the date the child is handed over. It was inserted in 2017 by Maternity Benefit (Amendment) Act, 2017. The reason for amending this provision was to enable the adoptive mothers to provide full maternal care to the children and encourage more women to join or continue to be a part of the workforce.

According to the petition the section does not take into consideration the procedure of adoption as envisaged in the Juvenile Justice Act (JJ Act), and the Adoption Regulations, 2017. The petition states that as per the law mandatory for an orphaned, abandoned or surrendered child to be declared “legally free for adoption” by the Child Welfare Committee under the JJ Act in order to proceed with the process of adoption. FurtherJJ Act does not contemplate that the committee declare a child free for adoption within 3 months. Hence the process is lengthy thereby making it impossible for some adoptive mothers to avail maternity leave.

The petition further states that the provision is discriminatory against mothers who intend to adopt  older children and adolescents. The petition also states that the provision is unconstitutional because it creates a distinction between biological mothers and adoptive mothers.

It also mentions that the provision violates Article 19 (1) (G) of the Constitution because it violates the adoptive mother’s freedom to carry on her trade, occupation and business by making it conditional on the age of the child. It further states that the provision denies a child (below the age of 3 months) care and protection and overlooks the physical as well the emotional wellbeing of both the mother and the child.

According to the petition, the provision is  incompatible with the country’s international obligations to all children below the age of 18 years, reflecting in the United Nations Convention on the Rights of the Child, such as, absence of any form of discrimination, protection and care for the well-being of the child, as well as the provisioning of a wholesome environment for the development of the child

The writ petition has been filed by  Hamsanandini Nanduri, an adoptive mother who is also a lawyer by profession. The case, which is numbered as W.P (C) - 960/2021 has been listed before Justices Abdul Nazeer and Krishna Murari. According to the Supreme Court ’s website, the case is listed tomorrow at item 4 for hearing.

Case title : Hamsanandini Nanduri Vs Union or India & Ors