India: Restriction Based on Age of Adopted Child for Grant of Maternity Benefits to Adoptive Mothers under the Code on Social Security, 2020 Held Unconstitutional

Authors: Avik Biswas, Ivana Chatterjee, and Kevin Kennedy

The Supreme Court of India held that the 3-month age cap on the adopted child, stipulated under Section 60(4) of the Code on Social Security, 2020, as a precondition for an adoptive mother to avail maternity benefit, is violative of Articles 14 and 21 of the Constitution of India. The Court further extended maternity benefit to all adoptive mothers, irrespective of the age of the adopted child at the time of adoption and urged the Government to introduce a dedicated provision for paternity leave for male parents.

 

Background

In Hamsaanandini Nanduri v. Union of India[1], the Supreme Court examined the constitutional validity of Section 5(4) of the Maternity Benefit Act, 1961 (“MB Act“), as amended by the Maternity Benefit (Amendment) Act, 2017 which is in pari materia with Section 60(4) of the Code on Social Security, 2020 (“SS Code“).

As per Section 60(4) of the SS Code  a woman who legally adopts a child below the age of 3 months  is entitled to 12 weeks of maternity benefit from the date the child is handed over to her.

 

Arguments made by the parties

The petitioner argued that denying maternity benefits to an adoptive mother solely because the child is older than 3 months lacks any rational nexus with the objectives of the SS Code. The petitioner further contended that the 3-month age limit is arbitrary and unreasonable, as there is no meaningful distinction between adoptive mothers whose children fall below or above this threshold.

Consequently, the petitioner contended that the SS Code deprives children over 3 months of the maternal care essential for their healthy development and successful integration into adoptive families, thereby disregarding both the physical and emotional well-being of the child and the rights of the adoptive parent, and being violative of Article 14 of the Constitution which guarantees the right to equality.

The petitioner further contended that the SS Code disregards the lengthy statutory adoption process under the Juvenile Justice (Care and Protection of Children) Act, 2015 (“JJ Act“) and the Adoption Regulations, 2022 (“CARA Regulations“), which ordinarily takes at least 2 months to complete, thereby rendering the provision largely unworkable in practice.

The petitioner also contended that the SS Code violated the right to reproductive autonomy of adoptive mothers and the right of the adopted child to holistic care and development under Article 21 of the Constitution, which guarantees the fundamental right to life or personal liberty.

The respondents contended that Section 60(4) of the SS Code strikes a balance between the rights of adoptive mothers and the concerns of employers, and that the age cap of 3 months is reasonable since a child older than 3 months does not have the same degree of intensive dependency on the caregiver. Further, the respondents submitted that adoptive mothers of children aged above 3 months may avail creche facilities under Section 67 of the SS Code, and that the adoption process has been expedited through the conferment of powers upon district magistrates and additional district magistrates to issue adoption orders.

 

Court’s Analysis and Ruling

• On maternity benefits as a fundamental right:

The Court observed that women, as primary caregivers, play a pivotal role in the early development of children, particularly during their formative years, when maternal care provides stability, security, and consistent nurturing.

Aligned with international conventions such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Maternity Protection Conventions of the International Labour Organization, as well as Indian judicial precedents[2] the Apex Court observed that that maternity protection constitutes a basic human right.

Further, the Court observed that maternity benefits are intended to support women during the critical phase of early motherhood by ensuring economic security at a time when they are most engaged in the care and nurturing of a young child.

In this context, the Court identified 3 broad components of maternity leave, namely:

(i) The time necessary for physical recovery following childbirth;

(ii) The time required to nurture and develop the emotional bond between the mother and the child; and

(iii) The time necessary to attend to the physical and emotional needs of the child and to facilitate the process by which the child gradually integrates into the family.

The Court noted that in the case of biological birth, these 3 components are largely subsumed within one another, whereas in the case of adoption, while the first component is absent, the second and third remain present and significant.

The Court further observed that in the case of a biological mother, the development of the emotional bond is often supported by physiological mechanisms that are evolutionary in nature, whereas in the case of adoption, the same bond must be consciously nurtured through time, presence, and sustained caregiving.

 

• On the right to equality under Article 14 of the Constitution:

Upon examining various judicial precedents^[3] on the doctrine of reasonable classification, the Court held that the distinction drawn by the SS Code between women adopting a child below the age of 3 months and those adopting a child aged 3 months or above fails to disclose any intelligible differentia and bears no rational nexus with the object of the SS Code.

The Court observed that the purpose of maternity benefits is not confined to the biological process of childbirth but extends to the broader concept of motherhood, encompassing the nurturing of an emotional bond and the integration of the child into the family environment. Accordingly, the need for economic security, institutional support, and protection of dignity does not diminish merely on account of the age of the child at the time of adoption.

The Court further noted that the SS Code does not contemplate any graded entitlement to maternity benefits. As a result, women adopting a child even a day older than 3 months are entirely disentitled, a position that fails to reflect the realities of caregiving, where the need for care and nurturing gradually tapers as the child integrates into the family.

The Court also took cognisance of the heightened vulnerability of certain categories of children, such as children with disabilities who often experience significantly longer waiting periods for adoption, and single adoptive mothers bear the sole responsibility of integrating the child into the family while simultaneously meeting professional obligations. In both scenarios, the absence of adequate maternity benefits places such individuals at a distinct disadvantage. The Court therefore held that Section 60(4) of the SS Code operates in violation of Article 14 of the Constitution.

 

The Court rejected the respondents’ submission that creche facilities under Section 67 of the SS Code are an adequate substitute for maternity leave, observing that the obligation to provide creche facilities arises only in establishments with 50 or more employees, thereby leaving a significant section of working women without access to such facilities. A creche facility, the Court held, merely provides a place for the child during working hours and cannot replace the indispensable presence and care of the mother.

 

• On the right to life and personal liberty under Article 21 of the Constitution:

The Court held that reproductive autonomy cannot be narrowly understood as being limited to biological reproduction alone. The Court opined that adoption represents a conscious and meaningful exercise of the choice to create and nurture a family and must be viewed as falling within the broader spectrum of reproductive decision-making under Article 21 of the Constitution.

In this context, the Court held that by stipulating an age limit of 3 months, Section 60(4) the SS Code failed to recognise the right of reproductive autonomy of those adoptive mothers who adopt a child aged 3 months or above, thereby denying them the ability to meaningfully exercise their right to decisional autonomy, dignity, and bodily integrity.

The Court highlighted that the JJ Act and the CARA Regulations require that all the authorities while implementing the provisions of JJ Act are obligated to take decisions based on the primary consideration that they are in the best interest of the child. The Court held that this obligation does not conclude with the completion of the formalities of adoption or the handing over of custody to the adoptive parents but is a continuing obligation that persists throughout the period of the child’s integration into the adoptive family. Therefore, the SS Code, by imposing a 3-month age limit, failed to adequately account for this obligation and therefore was operating in violation of Article 21.

 

• On the operability of Section 60(4) of the SS Code:

The Court undertook an examination of the timeline prescribed under the JJ Act and the CARA Regulations for declaring a child legally free for adoption. It noted that in the case of a surrendered child, the statutory process requires a minimum of approximately 71 days, while in the case of an orphaned or abandoned child, the process may take 73 to over 133 days, depending on the age of the child. The Court held that these timelines cannot be compromised, having regard to the sensitive nature and serious legal consequences that follow once a child is declared legally free for adoption. Accordingly, by the time the child is legally placed with the adoptive mother, the 3-month age threshold contemplated by the SS Code would, in most cases, already stand exhausted.

The Court held that a beneficial legislative provision must be capable of meaningful implementation so that the intended beneficiaries can effectively avail the protection offered by the legislature. A provision which, owing to its design or the conditions surrounding its operation, cannot be effectively applied risks becoming a mere formality on paper rather than an instrument of social welfare.

 

• On paternity leave:

The Court observed that society has historically attributed caregiving and nurturing responsibilities almost exclusively to mothers, and that this assumption has seldom been examined with the seriousness it deserves. It further noted that the absence of paternity leave reinforces gendered roles in parenting and even where a father is willing and desirous of contributing, he is left without a meaningful opportunity to do so. The Court highlighted that paternity leave serves an important purpose by enabling fathers to participate meaningfully in the early stages of a child’s life, dismantling gendered roles, and advancing the best interests of the child.

The Court noted that the concept of paternity leave was not entirely alien to Indian law and Sections 43A and 43AA of the Central Civil Services (Leave) Rules, 1972 grant male government servants 15 days of paternity leave in connection with childbirth and adoption, respectively. However, no comparable provision exists as a social security benefit under the SS Code.

 

• Operative directions:

The Court therefore declared Section 60(4) of the SS Code, to the extent it prescribes a 3-month age limit on the adopted child, to be violative of Articles 14 and 21 of the Constitution and read down the provision to extend maternity benefit to all adoptive mothers, irrespective of the age of the adopted child, directing that it be understood as follows:

“A woman who legally adopts a child or a commissioning mother shall be entitled to maternity benefit for a period of 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.”

The Court further urged the Government to introduce a provision for paternity leave as a social security benefit, with its duration determined in a manner responsive to the needs of both the parent and the child.

[1] Writ Petition (C) No. 960 of 2021.

[2] B. Shah v. Presiding Officer, Labour Court (1977) 4 SCC 384; Municipal Corpn. of Delhi v. Female Workers (Muster Roll) (2000) 3 SCC 224; K. Umadevi v. State of Tamil Nadu. (2025) 8 SCC 263; Rama Pandey v. Union of India 2015 SCC OnLine Del 10484; Dev Shree Bandhe v. C.G. State Power Holding Co. Ltd. 2017 SCC OnLine Chh 1763; Chanda Keswani v. State of Rajasthan 2023 SCC OnLine Raj 3274; Pratiba Himral v. State of Himachal Pradesh 2021 SCC OnLine HP 9295; State v. Ravina Yadav 2024 SCC OnLine Del 4987; and Susan K. John v. National Board of Examinations in Medical Sciences 2026 SCC OnLine Ker 1333.

[3] State of W.B. v. Anwar Ali Sarkar (1952) 1 SCC 1; State of Gujarat v. Shri Ambica Mills Ltd. (1974) 4 SCC 656; Pravinsinh Indrasinh Mahida v. State of Gujarat 2021 SCC OnLine Guj 1293; In re (Citizenship Act, 1955, Section 6-A) (2024) 16 SCC 105; and State of Tamil Nadu  v. National South Indian River Interlinking Agriculturist Association (2021) 15 SCC 534.

Key Action Points for Human Resources and In-house Counsel

Employers should review their internal policies to ensure that all adoptive mothers are provided maternity benefit for a period of 12 weeks from the date the child is handed over to them, irrespective of the child’s age at the time of adoption.