Pre-Service Children From First Marriage No Bar to Maternity Leave for Child of Second Marriage: Supreme Court

The appellant had two children, born in 2007 and 2011, from a marriage dissolved in 2017; she joined government service as an English teacher in December 2012, and those children live with their father (para 4). After remarrying in 2018 she sought nine months' maternity leave from 17.08.2021, which was refused on 28.08.2021 because FR 101(a) allows it only to women with less than two surviving children (paras 4, 9). A Single Judge allowed her writ petition, but a Division Bench reversed it, holding that maternity leave is not a fundamental right (paras 4, 11). The State defended its small-family policy (para 7).

Article 21 has been read to include the rights to health, dignity and privacy, and Article 42 directs the State to secure maternity relief (paras 13-14). The Maternity Benefit Act does not apply to State employees but gives guidance: it sets no cap on the number of children, only reducing the benefit to 12 weeks for a woman with two or more surviving children, and it overrides inconsistent laws (paras 18-20). International instruments such as CEDAW treat maternity leave as part of reproductive rights (paras 25-28). Suchita Srivastava, Devika Biswas and X v. Principal Secretary place reproductive choice within Article 21 (paras 29-31). In Deepika Singh, a spouse's two children from an earlier marriage did not defeat maternity leave for the employee's sole biological child, and the leave rule was construed purposively (para 33). Here the two children were born before the appellant entered service and live with their father, and this is her first child in service and in her present marriage (para 34). Population control and maternity benefit are not mutually exclusive and must be harmonised (para 35). The Court disagreed with the Division Bench and also with the Single Judge's reasoning (para 36).