Is there a law for Paternity Leaves in India?

2 Oct 2021  Read 1060 Views

The discussions and debates revolving around paternity leaves have started to resurface around the time when the Indian cricket team captain Virat Kohli decided to take eternity leave and chose to desert in the India-Australia test series in between. Maternity relief is provided under Article 42 of the Indian constitution as under Directive Principles of State Policy. Various legislation have also been enacted to protect women's interests at work during their maternity leave.

India, on the other hand, does not have a national paternity leave policy. Although a law was submitted in 2017 to implement such a policy, it was not approved. Given the global environment, paternity leave is becoming increasingly important and necessary. Paternity leave will be incorporated into the constitution. This will be done in the interest of a gender-neutral society and the abolition of patriarchal gender norms in which mothers are solely responsible for their children.

The Notion of Paternity Leave

“Paternity Leave is a period of time during which the father of a new baby is authorised to be away from work,” according to the Oxford Dictionary. In layman's terms, paternity leave is a period of time undertaken by a father soon after the birth of his new-born to assist with child care and help for the mother. Those who have parental responsibilities can take paternity leave. This necessitates them being the biological parent of the child (whether or not they reside with the child) and accepting any obligation for the child's upbringing. They could be the child's biological or foster parent, as well as their partner.

In 2013, 78 of the 167 nations had paternity leave laws in place. With Sweden leading the way in 1974, the Nordic welfare nations were among the first to publicly urge greater usage of paternity leave. In the private sector, there is no law necessitating private companies to provide paternity leave to their employees, but some MNCs do, such as Zomato, which offers 26 weeks of parental leave, Microsoft, which offers 12 weeks, Infosys, which offers 5 days, Facebook, which offers 17 weeks, IKEA, which offers 6 months, and Tata Steel, which offers 10 days.

Parental Leave in Indian Scenario

In India, there is no nationwide legislative act regarding paternity leave, but there are provisions in specific industries that provide paternity leave. In 1999, the state issued a notice under Central Civil Services (Leave) Rule 551 (A) permitting a male Central Government employee with fewer than two living children to take 15 days of paternity leave to attend to wife and the infant child. A central employee may receive this leave 15 days before or after the child's birth, but not more than 6 months after the child's birth, according to this regulation. Private businesses, on the other hand, are allowed to set their own paternity leave rules. As a result, paternity leave is granted at the employer's discretion.

Indian Judiciary and Paternal Leave

There have been numerous instances where a request for paternity leave has been brought to the attention of the judiciary, but no uniform policy has been established. The petitioner in Chander Mohan Jain v. N.K Bagrodia Public School contested the defendant's rejection of his paternity leave request and salary deduction for taking time off to care for his wife and newborn child. Regardless of the lack of regulations, the New Delhi High Court declared that in this case, all male employees of unaided certified private schools are entitled to paternity leave. As a result, private-sector professors are relieved because they are within the authority of the Director of Education and so eligible for paid leave.

The petitioner requested paternity leave in Rakesh Malik v. State of Haryana, which was rejected. He sought the Court to formulate such policy under the ambit of Article 226 in his challenge. Furthermore, in Vijendra Kumar V. DTC, the DTC driver submitted an original plea, but the Court dismissed the appeal, claiming that the DTC had no provisions for paternity leave and that the CCS Paternity Leave guidelines had not been approved.

Paternity Leave under 2017 Bill

MP Rajiv Satav submitted a Paternity Benefit Bill in Lok Sabha in 2017, in a historic step to protect working men's fatherhood rights and offer a nationwide recognition of paternity with uniform rules across all industries. However, the bill was unable to become a law, and thus, India continues to lack paternity leave legislation.

The Paternity Benefit Act of 2017 was intended to cover employees from both the organised and unorganised sectors. It planned to establish a Parental Benefit Scheme Fund to extend paternity payments, with all employees and businesses contributing according to the union government's ratio. According to the regulations, the employer must pay the paternity sum in advance after producing reasonable evidence that the employee's wife is going to have a child. Paternity benefits are provided for a maximum of 15 days, not to surpass 7 days prior to the expected delivery date, and are accessible for three months from the date of child's birth to a father with less than two surviving children. An employer that refuses to pay any sum of paternity benefit to a male who is eligible under this Act shall be condemned to jail for not less than three months but not more than one year, as well as a fine of not less than Rs.20,000 but not more than Rs.50,000, according to the bill.

Paternity Leave: A Necessity

As per Article 42 of the Indian Constitution and the Maternity Benefit Act of 1961, the rights of women are insured by the provision of maternity leaves. However the absence of any such legislation or right to the father points at the set idea of child rearing being the sole responsibility of the female, thus creating an impediment in a gender neutral society.

Conclusion

Paternity Leave reflects changes in marriages, parental responsibilities, and prevailing norms, and has good consequences for gender equity at home and at work. Studies have found a correlation between fathers taking time off and the mother's wages, as well as lower mother absenteeism due to illness and higher female employment in private enterprises. Paternity leave also has a variety of benefits for the mother, such as enhanced health and economic results, a more equitable allocation of household chores, and increased child bonding.

Thus it can be said that amendment of Article 42 which is incomplete in its entirety is the need of the hour for removing the stigma of patriarchal gender roles in our nation. The addition of paternal leaves in Article 42 and the creation of a separate legislation for the same shall be helpful in creating an educational value statement for a more gender neutral society.

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