Sitting on his mother’s lap, the 15-month-old baby plays with a milk bottle, chewing on biscuits. Trigyansh Jain doesn’t even know that he is a mini-celebrity in the Delhi High Court these days.
He is fighting a key battle against India’s population control rules – the rights of a third child. At stake is his mother’s maternity leave benefits at a Municipal Corporation of Delhi school. Can the working mother of a third child have the same rights as she did with her first and second born?
Last year, when he was barely three months old, he petitioned the Delhi High Court for the ‘right to maternal care’ after his mother, Amita Jain, a teacher in a government-run primary school, was denied maternity leave by her employers — the North Delhi Municipal Corporation, which is now part of the MCD.
Judges, staffers and even the tea seller in the MCD office are talking about him.
“He’s just a toddler. He can’t even walk, he is completely dependent on his mother. Does he even know what is happening there?” asked a bemused additional director in the MCD’s education department.
Jain was working from home even during the 45-day stressful confinement period after giving birth. According to the Central Civil Services (Leave) Rules, the mother gets maternity benefits during her employment only for the first and second child, as part of India’s family planning initiative that discourages large families. But Jains have argued that the rules are in conflict with the new-born’s right to care and nourishment. What’s more, Jain had her two older children when she was not a government employee.
Trigyansh was born on 17 January 2022. But from the very next day, Amita claims, she was on the phone sending assignments from the hospital bed to her Class II students.
“I worked from 18 January to 17 February 2022, but when I asked (maternity leaves) for this period I was compelled to take leave for some days despite working during those days.” She mentioned that her leave application was rejected, and as a result she “had to use her earned leave for the days she actually worked”.
Trigyansh’s petition before the Delhi High Court says that “his (her son’s) fundamental rights are being violated”. On the other hand, the MCD argues that they are following the rules of the central government.
“The next date listed for final arguments is 11 May and we are looking forward to getting relief from the Hon’ble court, says Trigyansh’s lawyer.
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The contentious service rule
Amita Jain gave birth to Trigyansh at a time when the country was still coming out of the third wave. Most restrictions had been lifted, but schools had yet to resume physical classes, and Jain was working from home.
She submitted her leave application on 27 January 2022, but 20 days later, on 17 February, the principal rejected her application, citing Rule 43 (1) of the Central Civil Services (Leave) Rules 1972 where maternity leave benefits are granted to only those government employees who have less than two surviving children.
The tricky part is the line in Rule 43- sub rule-1 of the CCS rule that says child care leave cannot be claimed as a matter of right and is subject to the approval of the employer.
Jain tried to argue her case with the school management. “I was told, ‘handle the situation on your own, because we cannot do anything in this case’,” she alleges.
And that’s when she found that the laws governing India’s maternity leave benefits and service rules are an inscrutable, tricky and labyrinthine maze.
Trigyansh Jain isn’t the first child whose mother has experienced this disadvantage. But he is the youngest to have become a petitioner in a maternity leave case. There are other cases across India where parents have moved court seeking maternity leave and benefits for their third child after joining government service.
This is not the first time that the rights of the third child is up for debate. In September 2019, a division bench of the Uttarakhand High Court held that a female government employee is not entitled to maternity leave and benefits during her third pregnancy as per state government rules. As per reports, Chief Justice Ramesh Rangnathan and Justice Alok Kumar Verma quashed an earlier 2018 order by a single bench that had struck down a state government rule denying maternity leave to women employees who were pregnant with their third child.
In another case going back to 2019, a sub inspector, who had given birth to twins during her first pregnancy, was fighting for maternity leave and benefits when she was pregnant again. The Madras High Court noted that unless there is a law that prohibits the number of children that a woman can have to control the population, the government cannot deny maternity leave on the basis of the number of children a woman can have.
And the Jains are pinning their hopes on this. The Maternity Benefit (Amendment) Act 2017 increased the duration of paid maternity leave for working women from 12 to 26 weeks. For women with two or more surviving children, the duration of paid leave is 12 weeks— six before and six weeks after the ‘expected date of delivery’, according to the 2017 Act.
However, the Union of India, which is also a respondent along with the MCD and the Department of Personnel and Training (DoPT) in the Jain case, filed a counter-affidavit stating that the CCS Rules is not applicable to government employees. “… Our rules (CCS) are not suo motu applicable to the MCD,” is stated in the counter-affidavit.
Jain’s frustration is evident when she goes through various rules and sub-rules.
“According to the CCS, if the heartbeat of the third, fourth, or fifth child in the foetus is detected, the mother cannot avail leave. However, if the same child is born dead, then 45 days of leave must be granted. This is unacceptable,” she says, referring to the Rules, which state that maternity leave not exceeding 45 days may also be granted to a female government employee, irrespective of the number of surviving children, in there is a miscarriage “including abortion on production of a medical certificate”.
The Maternity Benefit Act also makes a provision in the case of a miscarriage, where a woman may be entitled to “leave with wages at the rate of maternity benefit” for six weeks. This comes into effect the day after the miscarriage.
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The law and the grey zone
Amrita Jain is also trying to find a clever loophole in the CCS by only counting the children born after she joined the school.
“I am seeking leave benefits for my first child, who was born in 2022, as I joined the school in 2015,” she says.
In March 2022, a government school teacher raised a similar argument in the Madras High Court. Her two older children—both born before she joined government service—were living with her first husband. She had her third child from her second marriage and applied for maternity leave which was rejected by Dharmapuri Chief Educational Officer. The Madras HC directed the Tamil Nadu government to grant her one-year maternity leave. It noted that maternity benefits could not be restricted based on the number of children.
But the laws and rules governing third child benefits are designed to not only control the country’s population but also to discourage India’s endemic son-preference culture. Many couples keep having children until a son is born.
The Jains have two daughters but deny that they were trying for a son. Amita says she underwent a “family planning operation” right after she gave birth to her third child. Husband Anuj says, “It’s not important to undergo a family planning operation. But we don’t want any other child. Our family is complete now. Amita says had the third child been a daughter, she would have still taken the same legal recourse.
“The rights of a child should not be affected by the number of siblings they have. Even if the two-children policy has been fulfilled, any subsequent child should have the right to be cared for by their mother. The government should recognise and respect this right,” says Trigyansh’s second lawyer, Sunil Kumar, Advocate, Supreme Court.
Women’s rights activists argue that denying a female employee maternity leave entitlements can be seen as a violation of her reproductive rights and a form of coercion toward family planning.
“Women are entitled to take maternity leave to care for their newborn child and to recover from childbirth, without fear of losing their job or being subjected to discriminatory practices. Denying this right can be seen as a form of population control as it limits the number of children women can have without losing their employment,” says Rakhi Sehgal, labour rights researcher and activist.
But Senior MCD officials in the education department say that exceptions to the service rules are rare.
“We have explained to them [the Jain family] that our rules will remain the same, but they have taken the matter to the court, as the matter is subjudice we are not authorised to talk,” says the official.
Of the nine hearings over the course of one year, Trigyansh has attended two with his mother. The Delhi High Court bench stated that there was urgency in the matter given the child’s age. At the time, Trigyansh was three months old.
“The matter is urgent, especially because the petitioner is suffering terribly at his tender age as he is deprived of his mother’s care with each passing day,” the HC bench stated in the second hearing.
“Petitioner is totally reliant on the mother’s milk for survival, and his rights are being infringed for no reason other than the fact that he is the third child,” it added.
Back at the primary school in RK Puram, most of Jain’s colleagues have two children. Staff room conversations revolve around the case.
“If Amita wins, then my husband and I will be able to have a third child,” says a primary school teacher who did not want to be named.
(Edited by Anurag Chaubey)