Maternity or paternity leave is protected and paid leave granted to an employee that allows a parent to take care of their newly born child. By taking time off work, the parent can better care for the child and devote time fully to their healthy development. The legislature has enacted the Maternity Benefit Act, 1961 that regulates the employment of a mother bearing a child for the stipulated time. However, there is no legislation explicitly providing for paternity leave to a father employed in an organisation.
The concept of paternity leave breaks the traditional notions that a mother is supposed to stay at home and look after the children while the father will be the bread earner for the family. It enables a father to develop a bond with his newborn, much like the mother, enabling a child’s healthy development. As such, the child will also develop a strong and affectionate relationship with both his parents. Paternal leave will allow the father to be emotionally and physically present and assist both the mother and the child.
Legal patronage to paternal leave in India
As discussed above, a Maternity Benefit Act has been enacted, but there is no similar legislation providing for paternity benefit to an expectant or adoptive father employed in private or non-government organisations.
In relation to persons employed under the Central Government, a notification was issued in 1999 by the Central Government under Rule 551(A) of The Central Civil Services (Leave) Rules. This notification makes provisions for paternity leave to a male employee under the service of the Central government having less than two children for fifteen days to look after his wife and the child. Paternity leave is available to even an apprentice or men on probation under the Central government. These fifteen days can be availed even before or within six months from the child's day of delivery. This leave is also available to a father who adopts a child. However, if the father does not utilise this leave, it is deemed to have lapsed. The notification also fixes the amount of salary to be given to the father during this leave at salary drawn last immediately before going on leave.
In the absence of any law providing for paternity leave in private companies, it is left to the discretion of the management of the company. Many multinational corporations have started implementing the concept of paternity leave in their administration. For example, Microsoft, Facebook, Starbucks and Deloitte allow 12- 17 weeks leave to a father while companies like Infosys, TCS and Oracle give 5-16 days paternity leave.
In Chander Mohan Jain v. N.K. Bagrodia, the Delhi High Court held that all male employees of recognised and unaided private school are entitled to paternity leave. In this case, one Chander Mohan Jain was employed as a teacher in a private school, he made an application seeking paternity leave to the school administration, which was rejected, and deductions were made from his salary for the duration of the leave. This rejection was challenged before the High Court, and the Court ruled in favour of Chander Mohan Jain, and the deducted amount was refunded to him.
In October 2020, Union Minister Jitendra Singh proclaimed that all male government employees who are single parents are entitled to paid childcare leave to take care of a minor child. A single male parent will include an unmarried, divorced or widower employee who would have to single-handedly care for the child. Jitendra Singh himself described this measure as ‘path-breaking and a progressive reform’ that will ease a single male parent's hardships. An employee on child care leave will also be allowed to leave the headquarters after seeking prior approval from the respective authority. This leave can be availed for up to years, and the employee will be permitted to receive 100% of his leave salary in the first year and 80% of the leave salary for the next year. Additionally, the leave travel concession can also be utilised by the employee being on child care leave.
Paternity Benefit Bill, 2017
In 2017, Shri Rajeev Satav, Member of Parliament, proposed a Paternity Benefit Bill in the Lok Sabha for giving benefits of paternity leave to men employed in any organisation, including private and unorganised sectors. According to this Bill, all employees will be eligible for paternity leave for fifteen days, extending to three months. This Bill is based on the premise that parental benefits should be available to both the parents equally, and they should be able to devote time to the upbringing of a newborn child. The Bill brings within its fold both natural and adoptive fathers or even a person who is exercising his control as loco parentis of a child.
The Bill, if passed by the Parliament, will apply to all organisations and establishments, including factories, mines, plantations etc., in public and private sectors. Employees on paternity leave will receive a paternity benefit at the average daily wage rate that is payable to him or the minimum wage rate fixed under the Minimum wages Act, 1984 or ten rupees, whichever is the highest under the proposed Bill. Moreover, this paternity benefit will be available to a man if he has worked for the concerned establishment for at least eighty days in twelve months preceding the due date for delivery of the baby. Leave can be availed by the man either before delivery or after birth; if leave is taken before childbirth, the paternity benefit for the period of leave up to birth will be paid in advance to the employee. It will also be unlawful for an employer to dismiss a man on paternity leave. The Bill also provides for punishment for the employer in case of violation of provisions of the Bill. Another remarkable feature of this Bill is that if a miscarriage occurs, the man will be entitled to paternity benefit at the rates applicable for a period up to seven days from the date of miscarriage.
In India, maternity leave has a statutory backing since 1961; however, the concept of paternity leave is fairly new and recent. Progressive and modern approaches highlight that the grant of paternity leave to fathers is equally important as maternity leave. Just as newly-born children require care from their mothers, the presence and availability of a father is also essential. This has a dual purpose of ensuring the child's healthy development and assisting the mother during this phase. The Paternity Benefit Bill, 2017 should be enacted and made into law. The idea of paternity leave breaks the stereotypical views that a mother is supposed to look after the child while the father shall be the family's bread earner. It is a much appreciated and long-awaited step.