A Madras High Court Bench of Justice L Victoria Gowri has observed that it is high time for policy makers to recognise the right to paternity leave/parental leave to biological/adoptive parents, as a basic human right of the pre-natal/post-natal child.

In this case, Sarvanan, a police inspector stationed at Kadayam Police Station in Tamil Nadu's Tenkasi District, applied for a 90-day paternity leave from May 1, 2023, to July 29, 2023. Initially approved, his leave was unexpectedly revoked on April 30, just a day before he was set to start. The High Court had allowed him to extend his leave, however the authorities issued a desertion notice against him, after which Sarvanan approached the High Court again.

The Court observed that "The development of a child commences from the pre-natal care days, that is from the day one of the mother’s pregnancy and continues all along the post natal care days, till the age of attaining majority. The role of both the mother and father during the prenatal care and post-natal care days gains importance from the perspective of the child’s right to survive. A welfare state is at the bounden duty to provide the foetus with a dignified pre-natal care and the child with proper health care, hygiene and sanitation in the post-natal care days. Perhaps grant of maternity/paternity leave to the biological parents and paternal leave to the adoptive parents is to ensure proper pre-natal/post-natal care, upholding the child’s right to protection of life as guaranteed under Article 21 of the Constitution of India. The right to protection of life guaranteed to every child by Articles 21 and 15(3) of the Constitution of India, culminates in the fundamental human right of the biological parents/adopting parents seeking maternity/paternity/parental leave. Thus, the action of the respondents cancelling and refusing paternity leave to the petitioner would amount to violation of Article 21 of the Constitution of India."

Counsel R Anand appeared for the petitioner, while Additional Government Pleader M Prakash appeared for the respondents.

Further, Sarvanan took the matter to the High Court, which allowed him to be off duty until May 15 and advised him to reapply for leave. Following this, he reapplied but was only granted leave from May 1 to May 30. His wife, facing a critical IVF pregnancy, gave birth on May 31. With his wife and newborn requiring care, Sarvanan felt compelled to extend his leave and notified his superiors through written representation and WhatsApp messages.

Despite this, on June 22, authorities issued a desertion notice against Sarvanan. They suspended him and demanded an explanation for his absence, classifying it as unauthorized leave.

Subsequently, Sarvanan filed a petition in the High Court, seeking the quashing of the desertion notice. He also requested a directive for his reinstatement to his original position.

The High Court observed that the leave should have been granted to the petitioner. In that context, it was said that, "Considering the unusual nature of this case, where a dutiful husband has sought for paternity leave before the competent authority, only for the purpose of taking care of his pregnant wife, at the time of complicated delivery procedure by IVF treatment, the competent authority ought to have granted leave as sought by him in his application from 01.05.2023 to 15.06.2023. However, such an order was not passed, but he was permitted to avail Unearned Leave on private affairs only for a period from 01.05.2023 to 30.05.2023. Though the Superintendent of Police was aware that the petitioner was not able to join duty, only because of the reason that he was attending the complicated delivery of his wife, impugned desertion order has been passed by him."

The petitioner was directed to appear before the concerned officials to submit necessary explanations, along with his wife's medical records and an apology letter. It was also directed that the case of the petitioner was considered with a considerate mind, and an order be passed within 4 weeks.

Cause Title: B.Saravanan vs The Deputy Inspector General of Police & Ors.

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