In a significant judgment, the Supreme Court struck down a legal provision that denied maternity leave to women who adopted children older than three months. Under Section 60 (4) of the Social Security Code, 2020, an adoptive mother can claim 12 weeks of maternity leave only if the child is less than three months old at the time of adoption.
When the Code came into force on November 21, 2025, the government had presented it as a major reform that brought nine existing social security laws under one umbrella to create “a more comprehensive and inclusive” system of protection for all sections of the workforce, including gig workers.
The law has some 164 sections covering areas such as employee compensation, provident fund, gratuity, and maternity benefits. Sections 59 to 72 deal with various aspects of maternity benefits, with Section 60 specifically addressing the “right to payment of maternity benefit”.
In Hamsaanandini Nanduri vs Union of India, the petitioner sought a declaration from the Supreme Court that Section 60(4) of the Social Security Code, 2020, is unconstitutional. Her main argument was that the provision creates an unfair distinction between adoptive mothers, violating the right to equality under Article 14.
Bani Dikshit, the counsel for the petitioner, argued 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 older is artificial and violates Article 14.
Countering the petitioner, Assistant Solicitor General K M Nataraj, appearing for the government, argued that once a child is three months old, there is no longer a “same intensive dependency” on the mother as before. Therefore, the adoptive mother can go to work. He argued that Section 60(4) strikes a balance between the rights of adoptive mothers and the concerns of employers.
In its order on March 17, the court sided with the petitioner. A bench of Justices J B Pardiwala and R Mahadevan said, “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 objective of the statute… While Article 14 of the Constitution permits classification, such classification must rest upon a real and substantial distinction.”
The court’s reasoning was that the roles, responsibilities, and caregiving obligations of adoptive mothers are the same regardless of the age of the child at the time of adoption. Therefore, denying maternity leave to adoptive mothers of children over three months of age is discriminatory and violates the right to equality granted by Article 14.
Maternity rights
The petitioner argued that by denying the mother “the right to a wholesome and holistic motherhood” and the adopted children “the right to receive sufficient care to be rehabilitated and integrated into the new family”, the provision violates the right to life and dignity of both the adoptive mother and the adopted child.
The court agreed that a core objective of maternity leave is to protect the dignity of motherhood by ensuring the child’s full and healthy development. It examined the meaning of motherhood in detail.
A key observation was that motherhood is not merely a biological function. In other words, the physical act of giving birth alone does not make one a mother. Parenthood is also defined by care and responsibility, the court held. It quoted poet Fleur Heyliger to stress that the transition into motherhood is a gradual process. “Not flesh of my flesh, nor bone of my bone, But still miraculously my own. Never forget for a single minute, You didn’t grow under my heart, but in it.”
A key aspect of motherhood to which the court drew attention was the bond a mother shares with her child. “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,” it observed.
The court further drew on research in developmental studies to underline the importance of early bonding. “The early infancy environment and changes have a lasting effect on the development of the 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 said.
The court went on to identify three key components of maternity leave: it allows the mother to recover physically after childbirth, gives her time to bond with her child, and to care for the child’s physical and emotional needs. “In case of adoption or surrogacy, while the first component is absent, the second and third components are present and significant,” the court observed and concluded that the three-month cap deprives adoptive mothers of the time needed to fulfil the second and third components, thereby violating their right to dignity under Article 21.
A flawed provision
While the Social Security Code, 2020, grants the right to maternity leave to adoptive mothers of children under three months of age, the lengthy adoption process in India means that completing adoption when the child is still under three months of age is nearly impractical (see table).
The petitioner argued that the process typically takes two months or more, and by the time the child is handed over, the statutory age limit is likely to have been crossed.
Noting the concern raised by the petitioner, the court observed that when a beneficial legislation is framed in a way that prevents the intended beneficiaries from actually receiving its benefits, it ceases to serve its social purpose. “The legislature, while enacting a statute, bears the responsibility of ensuring that the law it enacts is capable of being implemented,” it said.
Paternity leave
The court also urged the government to come up with a provision recognising paternity leave as a social security benefit. “Parenthood is not a solitary function performed by one parent but rather a shared responsibility in which each parent contributes to the child’s holistic development,” the court noted.
Apart from reinforcing gendered roles in parenting, the absence of paternity leave is also problematic from a child welfare perspective. The presence of a father contributes significantly to a child’s emotional and psychological well-being during the early stages of life, the court noted. “The realisation that one of its parents arrived a little late to the story because the law required him to be present at work is something the child may never consciously know, yet the quiet cost of that absence is later reflected in their relationship,” the court noted.
Sections 43A and 43AA of the CCS (Leave) Rules grant 15 days of paternity leave to male government employees. There are no such provisions for those in the private sector. The Social Security Code, 2020, is silent on it.