Author: Kiran Khanna A.P, IV year of B.Com.,LL.B(Hons.) from Tamil Nadu National Law University.
ABSTRACT
The concept of paternity benefit has stemmed from the basic notion that a child essentially needs the care and nurturing of both mother and father. Importantly, providing benefits to the mother alone may lead to unnecessarily reinforce the discriminatory idea that women are the only caregivers and this could further widen the gender gaps in our society. Essentially, family responsibility includes the equal participation of both mothers and fathers. This is where the aspect of paternity benefits become important as paternity leaves and benefits improve the bonding between the father and his child and at the same time, it increases the economic labour force participation of women. This kind of a bonding between the parents and their child is necessary for the child’s overall health.
When we look at this issue from India’s point of view, it could be noted that India doesn’t currently have any nationwide paternity leave policy to ensure that new fathers get adequate paid leaves to spend time with their new-born babies. On the other hand, maternity leave is a very-well established concept and it is available in most countries, but, sufficient paternity leaves are rarely provided. Inorder to address this issue, the Indian Paternity Benefit Bill was introduced in 2017 and unfortunately, it failed to become a law. At present, only the Central Civil Services Rules, 1972, allow male govt. employees to avail paternity leave for a time-period of 15 days and this factor again highlights the need for a nationwide paternity leave policy in our country.
Hence, through this research work, I am trying to underline on the need to have adequate national paternity benefit policy and in turn, these benefits will help our nation to achieve greater gender equality, both at home and workplace. Furthermore, this research work also tries to bring out several reformative measures (especially by relying on Article 42 of the Indian Constitution) that could be implemented to strengthen the paternity benefit policies of our country.
PATERNITY BENEFIT POLICY: A GENERAL UNDERSTANDING
Parental leaves are a kind of labour law benefit that offers job protected leave to the parents of new-born or adopted child so that they can spend valuable time with the child and give proper care and nurturing. It can be paid or unpaid. These parental benefits infact help the parents to maintain a balance between their career(job) and their family life. But, due to various societal barriers, these parental benefits were limited to maternity benefits alone in many cases. Providing adequate paternity leaves have become more important in the modern days especially, as our family structures are evolving rapidly and we are witnessing a drastic increase in the number of nuclear families as opposed to joint families. This change necessitates both parents to equally contribute towards the raising of their child. At the same time, these parental benefits aid them in doing this without compromising on their careers.
When we look into the matter of paternity leave from the historical point of view, we can see that an American teacher named Gary Ackerman had made one of the most important and primary step for the development of this concept.Gary Ackerman had a daughter who was about ten months old and Gary applied for paternity leave so that he can take care of his child. However, his application was outrightly rejected by the school Board. However, he was told that such child-care leave policies are only available to women teachers. Aggrieved by the same, he went before the US district court and sued the Board for their discriminatory action. Gary Ackerman argued that the granting of such leaves only to women tend to force women to be sole housekeepers and thereby preventing the husband and wife from sharing their family responsibilities. These arguments were found to be appropriate by the Court and it found that this “mother’s-only rule discriminates against male teachers as a class.” Hence, under the Court’s directions, the Board had to revisit their bylaws to provide equal rights to male teachers(fathers) as well. Such kind of a determination shown by Gary Ackerman can be considered as the ground-breaking step towards paternity leave’s existence.
Moreover, providing maternity benefits alone with increase the burden on the mothers to struggle alone in maintaining a balance between the work and family life. This aspect is infact not keeping up with ideals of gender equality of the modern day. We very well need laws that assist the fathers to take paternity leaves so as to easen the burden on the mothers and they will be able to focus more on their career as well. Therefore, paternity leave is a step towards gender equal society.
Earlier, the labour activities in our societies were very much divided based on gender and men were primarily considered as the bread-winners and women were restricted to the implementation of household activities. However, our modern-day societies have evolved a lot positively in this regard and women are now at par with men in all the sectors of the society and they have started to work and independently contribute towards the family’s total income. Importantly, it is now understood that from the moment a child is born, both the parents have joint-responsibility on the child’s well-being. But unfortunately, our laws and government policies have not been after to reflect many of these social changes and the same is seen with the case of paternity benefits in countries like India. On the other hand, many of the foreign countries have recognized the importance of this policy and have implemented the same, so as to promote gender equality at both home and workplaces. The lack of adequate paternity benefit policies in countries like India have sometimes resulted in women (mothers) sacrificing their job and career for raising their young children and these unfortunate incidents further increase the gender inequalities.
Hence, at this outset, it is also essential to highlight the key benefits of providing paternity leaves for male employees (fathers).
Importantly, paternity leaves tend to strengthen and stabilize the partnership bond between the spouses and such off times give the couple an opportunity to divide their household tasks and mutually provide emotional support and clearly observe and assist in the developmental stages of their child.
Various researches have also revealed that a father’s Studies also show that a father’s augmented participation and contribution in their child-care can often relieve the mother from her post-partum depressions.
Moreover, this leave period aids the father to learn and understand more about the process of fatherhood and his importance in shaping the child’s life and character. This is will help them to understand how they should allocate their time and responsibilities for the future.
Paternity leaves help the father to build a very strong connection and bonding with the child that is to last for a life-time. Securing a lifelong bond with your child. At the same time, the child also tends to build a sense of security and happiness.
Eventually, availing paternity leaves help by supporting the spouse to achieve their career-goals and this will provide a boost to the family’s overall income too. By this way, they can identify their true self and identity.
Likewise, by taking parental leaves to spend time and take care of their families, men can rejuvenate themselves, so that, when they return to work, they develop a feeling of freshness and tend to be energized.
ANALYSING THE EXISTING LEGAL FRAMEWORK ON PATERNITY BENEFIT LEAVES IN INDIA
EXISTING LEGAL FRAMEWORKS
It is quite unfortunate to note that there isn’t any separate independent legislation in India that governs the paternity leave policy.
CENTRAL CIVIL SERVICES (LEAVE) RULES, 1972
Rule 43A of this enactment grants paternity leave for the male employees for a time-period of fifteen days.
But these rules are applicable only to the govt. servants who are appointed to the civil services and positions that are connected with the Union’s affairs.
This paternity leave can be taken before the actual birth of the child and the same can be availed anytime within six months from the birth of the child. If at all the male employee doesn’t make use of the leave benefit within the stipulated time-period, the benefit gets lapsed.
Importantly, this benefit is available to the male employee on during the birth of his first 2 children. During this period, the employee gets the same amount of salary that he had received before availing the paternity leave.
PATERNITY BENEFIT BILL, 2017
The introduction of the Paternity Benefit Bill, 2017 in the Lok Sabha as a private-member Bill was undoubtedly a positive step towards gender equality. The Bill aimed to grant paternity leaves to male employees(fathers) working in any sector including unorganised and private sectors.
As per this Bill, fifteen days were kept aside specially as paternity leave which is fully paid. Out of these fifteen days, upto seven days were allowed to be taken before the actual expected date of child-birth (expected delivery date). This bill allows the leave to be availed within a time-period of 3 months from the date of the child’s birth and the bill also extends the same kind of benefit to adoptive parents as well.
If the employer doesn’t pay the paternity benefit amount to the employee who is entitled to get it, the employer could be punished with imprisonment for minimum 3 months to a maximum of 1 year along with a minimum fine of twenty-thousand to a maximum of fifty-thousand rupees.
However, we cannot say that this Bill is free from flaws and understanding these flaws are necessary, so as to correct them and improve the characteristics in the future legislations. As per sec. 4(4) of the bill, for the persons who adopts a child (aged less than 3 months), the bill specifies a paternity leave of only 15 days and this is not at par with the biological child. Such a differentiation created by the Bill is extremely unnecessary as in reality, both irrespective of whether the child is biological or adopted, it requires the same amount of care and nurturing of both the parents and such a leave period is necessary for the parents to develop their sense of bonding with the child. Also, the bill doesn’t tend to recognize unmarried couple as it has clearly mandated that the paternity benefit policy can be claimed only by a legally-wedded husband. The Bill also only applies to men with less than two surviving children, who may sound like a negative, however takes into account the population explosion India is suffering from and the benefits can act as an incentivized solution for the same. On the other hand, the Maternity Benefit (Amendment) Act, 2017 was passed in the same year and this particular Act allowed maternity leave upto 26 weeks. Out of this, 8 weeks of leave could be taken before the actual delivery of the child. Earlier, it was Maternity Benefit Act of 1961 that governed this provision and as per that act, only 12 weeks of maternity leave were provided. This amendment brought in 2017 is indeed a very positive step as it adds more to the value of motherhood. However, the bill on paternity leave never saw the daylight and it didn’t become an Act and it is indeed unfortunate to note that paternity leaves are lagging behind. Recently, the Government has allowed allowed a “Child Care Leave” to all single fathers (male employees). Single father would include unmarried men who are raising a child, divorcees and widowers as well. Under this leave policy, the parent would be entitled to receive the complete salary of the first year of the leave period and gets eighty percent of the salary of the subsequent year. This newly introduced policy is undoubtedly a positive sign. However, the married male employees are again surprisingly excluded from getting paternity leaves and hence, such provisions are incomplete in nature. Married men are excluded by the government keeping in mind that their wives will take care of their child on her own. Again and again, the stereotypical thoughts are getting reinforced by such incomplete provisions.
JUDICIAL APPROACH TOWARDS PATERNITY LEAVE IN INDIA
The need for standardised paternity leaves have been taken before our Indian Judiciary as well on numerous occasions. However, none of the approaches resulted in the creation of a nation-wide paternity leave policy.
The case of Chander Mohan Jain Vs. N.K Bagrodia Public School is a very important case with respect to paternity benefit policies. The petitioner was a teacher in a private school and his application for paternity leave was rejected by the school authorities and his salary was also deducted for the said period. The petitioner was very much in need of this paternity leave as he wanted to take care of his wife and new-born child. Aggrieved by the rejection of his paternity leave application, the petitioner approached the honourable Delhi High Court and even though there wasn’t any centralised legislation regarding the same in the country, the High Court gave a verdict in favour of the petitioner granting paternity leave to the male employees of private schools. Indeed, this verdict was a very progressive and positive one.
Similarly, in the case of Rakesh Malik Vs. State of Haryana, the petitioner was an employee of the State government and his request for granting paternity leave was rejected by the authorities. However, when he approached the Punjab-Haryana HC in accordance with Art.226 requesting paternity policies to be framed, the Court didn’t give a favourable opinion. Likewise, in the case of Vijendra Kumar Vs. Delhi Transport Corporation, the petitioner was a driver under the Transport Corporation and his paternity leave request was also rejected by the Court mentioning the reason that there weren’t any provision under the rules of the Transport Corporation regarding paternity leaves.
Hence, from the above-mentioned incidents, it is clear that both our legislative and judiciary was not able to successful address the issue of paternity leave in our country and ths is underlining the fact that a standardised and nationalised policy on paternity leave is a necessity in India.
SOME POSSIBLE REFORMATIVE MEASURES
One of the most important and primary step in this issue is to be taken by our lawmakers as our crucially needs a centralised legislation that can govern the paternity leave policy in all the sectors. A centralised legislation like the proposed Paternity Bill of 2017 is an absolute necessity in this 21st century. However, as we have noted earlier, there were some flaws even with the proposed bill of 2017. Hence, the lawmakers must consider the same and address those flaws while creating a new centralised paternity leave policy. This new paternity leave policy should not be discriminating between biological and adopted children and they must be more liberal to recognize and include unmarried couple and their children as well. Likewise, the number of days allowed as paternity leave must be comparable with the maternity leave and it should not be restricted to a few days. They must strongly consider the fact that, other than physical recovery after delivery and breastfeeding, men and women deserve equal number of days off for the purpose of child rearing.
Analysing article 42 is also very essential in this regard and art. 42 tells us that “the state shall make provision for securing just and humane conditions of work and for maternity relief”. From this article, our Constitution makers dream to create a society that is gender neutral in nature. Acts promoting maternity leaves were also passed in line with the same. However, it could be noted that art. 42 wouldn’t be helpful in removing the stigmas attached to the patriarchal gender roles from our society as by providing for only maternity leaves, it has further reinforced the stereotypical idea that child-rearing is solely the women’s responsibility. Such an idea will definitely defeat the actual purpose for which this provision was enacted. Without removing such stereotypical concepts, the goal of a true gender-neutral society can never be achieved. Likewise, in the case of Municipal Corporation of Delhi Vs. Female Workers case, the hon. Supreme Court had stressed on the need to obliterate social inequalities, so as to achieve a just social-order. Hence, one notable suggestive measure could be to amend this article so as to add provision for incorporating paternity leave as well and thereby strengthen the idea that child-rearing is the responsibility of both the parents.
Even if paternity leaves are provided, there could be situations wherein the male employees are not utilising their paternity leaves due to some prejudiced mindsets and such situations have been observed in some foreign countries as well. To address such issues, there is a need to create awareness to break such stereotypical thoughts among our work-force about the importance of paternity leaves on both the child as well as on spouse.
Some studies have also revealed that some male employees have felt that by availing paternity leaves they may get frowned upon by their employers. Hence, the employers must make sure that the availing of paternity leaves in no way affects the employee’s career and thereby paternity leaves should be normalized to remove the unnecessary stigma attached to it. Recently, Indian cricketer, Virat Kohli had also availed a paternity leave to take care of his family. Such real-life examples are to be taken up as an inspiration and they will also be helpful in normalizing paternity leaves to a certain extend.
Even though our country lacks a standardised and centralised paternal leave policy, there are some private and multi-national companies that show a very favourable approach in this regard and grant paternal leaves to their male employees. A very good example for such a private company is Zomato. Zomato is a private company based in India that focuses on food delivering. Zomato had announced their stand on paternity leave policy in early 2019 itself. Laudably, Zomato offers fully-paid parental leave benefits for both their male and female employees for a time-period of 26 weeks. In the same way, American e-commerce company, Amazon also had been providing paternity leaves to their male employees since 2015 and the leaves are allowed for a time period of six weeks.
While analysing the situation of paternity leave policy in India, it is also essential to look into the other foreign nations to understand how they have reacted to the concept of paternity leaves.
Interestingly, it was Sweden that granted paid paternity leaves for the first time back in 1974 itself and in total, 480 days off days could be shared by both the parents and out of this, ninety are particularly set aside for each parent.
Finland allows equal number of off days for both the parents (164 days for each parent).
Norway provides paternity leave in the form of “daddy quotas” for a period of fifteen weeks.
Similarly, Spain also allows the male employees to avail paternity leave upto sixteen weeks.
The Portuguese Labour Code also adopts a gender-neutral policy and allows paternity leaves upto 120 days. As an option, they are also providing an additional 30 day paternity leave with 80 percent salary.
UNICEF has also set an example by providing paternity leaves upto sixteen weeks. has extended it to 16 weeks.
India is a developing country that is having an enormous infant population. Hence, it could take inspiration from the open-minded approach taken by these private companies and foreign nations and introduce a standardised and nation-wise paternity leave policy. Undoubtedly, such steps could prove fruitful in the long run in creating a gender-neutral society.
CONCLUSION
From the study, it is clear that our country is terribly in need of a standardised paternity leave policy. The study also revealed that the providing such parental benefit policies have a number of added benefits like father-child bonding that have a huge impact in the long run. Moreover, such policies will help to remove the unnecessary stereotypical stigmas that put the entire burden of the family on the women. Such gender stereotypes negatively impacts both the husband and wife (entire family).
Hence, it is high time, people start to recognize that the childcare and household tasks are the responsibility of both the husband and wife. Also, both the spouses need to get their own space for their career building and financial independence. This will be really important in transforming our nation into gender-neutral one and thereby reducing the gender gaps.
Our country, India is the largest democracy in the world and hence implementing these provisions will give a very crucial message to the whole world for them and this will definitely help us in creating a better future that is free from any sort of discrimination.