A public interest litigation petition has been filed in the Supreme Court challenging the Constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961 which lays down that adoptive mothers will be eligible for maternity leave only if they adopt children who are less than 3 months old (Hamsaanandini Nanduri v. Union of India).

As per the provision, a person has to be an adoptive parent to a child below three months to avail the benefit of 12 weeks maternity leave.

There is no provision for maternity leave at all for a mother adopting an orphaned, abandoned or surrendered child above the age of three months.

Such a distinction will lead to parents preferring to adopt a new born children as against older children, the petition filed by Hamsaanandini Nanduri said.

Section 5(4), therefore, discriminates not only between biological and adoptive mothers but also between children who are adopted.

Besides, the plea said that the provision is also in conflict with the letter and spirit of Juvenile Justice Act because it does not take into consideration the procedure of adoption under the JJ Act and the regulations framed under that Act, the Adoption Regulations.

This is because the process of adoption, which requires that any orphaned, abandoned or surrendered child be declared “legally free for adoption” by the Child Welfare Committee under the JJ Act, cannot be completed in a meagre span of three months, referred to in Section 5(4) of the Maternity Benefit Act.

This would make it almost impossible for a mother to adopt an orphaned, abandoned or surrendered child who is less than three months old, the petition drawn by advocate Bani Dikshit and filed through M/s Mukesh Kumar Singh & co contended.

"Section 5(4) apart from being discriminatory and arbitrary towards the adoptive mothers, also arbitrarily discriminates against orphaned, abandoned or surrendered children above the age of three months, which is completely incompatible to the object of the Maternity Benefit Act as well as the JJ Act," the petition said.

Further, Adoption Regulations involves a minimum duration of two months for a child to be declared “legally free for adoption” in accordance with law.

"Inevitably, such processes and procedures are fraught with delays," it was submitted.

Pertinently, the plea also took objection to the period of maternity leave provided to adoptive mothers when compared to biological mothers.

"The purported 12 weeks of maternity benefit to adoptive mothers is not only a mere lip service but when juxtaposed with the maternity benefit of 26 weeks provided to biological mothers, fails to stand even the basic scrutiny of Part III of the Constitution which is wedded to the concept of non-arbitrariness," the petition said.

The plea is slated to be heard by a bench of Justices Abdul Nazeer and Krishna Murari on Friday.