The Amicus Curiae has told the Delhi High Court that the infant’s ‘unselfconscious claim’ on his mother’s time is the fundamental right that may encroach upon her right to privacy and agency.
Background of the Case
The development came in relation to a four months old toddler seeking enforcement of his right to maternal care.
Advocate Shahrukh Alam advanced her submissions in a plea moved by the toddler whose mother was denied maternity leave by the North Delhi Municipal Corporation. They denied maternity leave on the ground since this was the third child.
Proceedings Ground
According to Articles 14 and 21 of the Constitution of India, the Petitioner had asserted his right to care by his parents.
On the other hand, based the NDMC in its decision by the Rule 43(1) of Central Civil Services (Leave) Rules, 1972 provides that a female government servant with less than two surviving children may be granted maternity leave for a period of 180 days, by the competent authority.
Since the Petitioner is the third child, his mother was denied maternity leave.
Proceedings
The Court has been further informed that the plea frames ‘maternity leave’ as primarily a duty owed to the child, and a corresponding fundamental right that vests in the child, to maternal time and care.
Apprising the court of the legal issues involved, Alam said that “the way the issue has been framed by the petitioner (toddler), it seeks to limit the agency of the mother…the child’s unselfconscious claim on his mother’s time as a fundamental right, may encroach upon the mother’s right to privacy and agency.”
Alam added, “However, ‘maternity leave’ is certainly not intended to shift the child-rearing responsibilities as a duty to the women alone, during the period of her maternity leave, such that the time meant for her own recuperation translates into unpaid domestic work…”
“issue of the petitioner’s right to life, to the extent it is linked to his need to be cared for, must be considered as a joint responsibility of both his parents,” the amicus added.
Current Status
The matter will now be heard on July 14 by a division bench comprising Justice Najmi Waziri and Justice Swarna Kanta Sharma. The Court granted two weeks tome each for filing Counter affidavits and a rejoinder in the matter.
The grant of maternity leave should be done keeping in mind the needs of the situation, that this is not a child rights issue alone but has to be seen on a larger canvass apropos rights of working mothers. With LiveLaw Inputs