Father's Professional Obligations Bar Him From Early Nurturing Of Infant Despite Physical Proximity: Supreme Court Urges Centre To Make Laws On Paternity Leave
The Court said that when fathers are afforded the opportunity to take leave following the arrival of the child, they are able to support the mother and share family responsibilities.
The Supreme Court, while urging the Union Government to make laws related to paternity leave, has said that a father who remains physically near but is compelled by his professional obligations cannot truly participate in the formative experiences of a child’s infancy.
The Court has also observed that the right of reproductive autonomy is not confined to the biological act of giving birth. The Court observed that adoption is an equal exercise of the right to reproductive and decisional autonomy under Article 21 of the Constitution, and an adopted child is no different from a so-called “natural” child.
While holding Section 60(4) of the Code on Social Security 2020 as unconstitutional, the Bench of Justice Justice JB Pardiwala and Justice R Mahadevan observed, "We must note that proximity is not identical to presence. A father who remains physically near yet is compelled by professional obligations to remain disengaged from early caregiving roles cannot truly participate in the formative experiences of a child’s infancy. It is not unknown that fathers have traditionally been perceived as providers, with their responsibilities revolving around financial stability. Consequently, as financial care does not resemble the visible, everyday nurturing, it has often been undervalued as a basis for recognizing the need for leave."
AOR Mukesh Kumar Singh and Co. appeared for the Petitioner, while ASG K.M Nataraj appeared for the Union of India.
The provision, i.e. Section 60(4) of the Code on Social Security 2020, which was made a subject matter of challenge, entitles mothers who legally adopt a child below the age of three months to the maternity benefit for a period of twelve weeks from the date on which the child is handed over to the adoptive mother.
The petitioner, mother of two adoptive children, had filed a petition under Article 32 of the Constitution seeking to challenge the constitutional validity of Section 5(4) of the Act, 1961, which came to be inserted vide the Amendment Act. Section 5(4) of the Amendment Act entitles only those mothers who are adopting a child below the age of three months to seek the benefit of maternity leave for a period of 12 weeks.
While highlighting the importance and need for paternity leave, the Court said, "There exists a kind of injustice, although not deliberate, yet based on assumptions so deeply rooted that they have ceased to appear as injustice at all, and have come to be accepted as the natural order of things in society. Society has historically attributed caregiving and nurturing responsibilities almost exclusively to mothers. While the role of a mother is undeniably central to a child’s emotional, physical, and psychological development, it would be incomplete and unjust to overlook the equally significant role of a father."
The Bench also emphasized that the "best interests of the child" do not end when the adoption papers are signed. Maternity leave is essential for the period of adjustment and integration. Older children, especially those with disabilities, require significant emotional and psychological support to bond with their new family, making maternity leave a necessity regardless of the child's age.
The Court highlighted, "Parenthood is not a solitary function performed by one parent but rather a shared responsibility in which each parent contributes to the child’s holistic development. Although the father is present at the periphery of infancy, yet he is not present in the intimate and irreplaceable way that society has always presumed the mother must be. This acceptance of absence has seldom been examined with the seriousness it deserves. As a result, the cost is borne silently by children who grow up never realizing what they lacked, by fathers who were constrained by circumstances to remain distant. At the same time, by mothers who were denied the companionship and support of their partners in the early phase of caregiving."
The Court had noted that while the petition originally challenged the Maternity Benefit Act of 1961, that law was recently replaced by the Code on Social Security, 2020.
"In the aforesaid context, the absence of a father is rationalized by the hope of making up for lost time through devoted weekends. For the child, who needed to hear the voice and feel the warmth of a father in those early moments, the absence is not merely a matter of memory. It affects the foundation upon which the child begins to build emotional security and attachment. The absence of a father during the formative years of a child’s life, particularly due to employment constraints, deprives both the child and the parent of the opportunity to form these early bonds", it added.
The Court also highlighted that the other side of the same coin is the historical absence of a father’s participation in everyday caregiving and shared responsibility. In this context, the Court said that the absence of paternity leave produces two consequences. 1. It reinforces gendered roles in parenting, and 2. Even where a father is willing and desirous of contributing, he is left without a meaningful opportunity to do so.
"When fathers are afforded the opportunity to take leave following the arrival of the child, they are able to support mother and share family responsibilities. This support extends to participating in the upbringing and caregiving of the child, assisting with household responsibilities, and remaining emotionally present during this demanding phase", the Court said.
The Court put its emphasis on Sections 43A and 43AA of the CCS (Leave) Rules, respectively, which grant a male government servant 15 days of paternity leave for the birth of the child or for adoption. Recently, a private member's bill titled The Paternity and Parental Benefit Bill, 2025 (Bill No. 82 of 2025), was also introduced, which seeks to grant eight weeks of paternity leave. The Bill, inter alia, seeks to extend paternity leave to adopting fathers.
"Before we part, we would like to pen that a child who is born or adopted does not know what the law has decided about presence of the father, nor does the child understand how the law values paternity leave. The child, in all likelihood, experiences the presence or absence of closeness, and the depth or shallowness of the bond, simply as the natural state of things between them. It does not know that the slightest distance it feels is not reflective of the care or affection that exists. The realization that one of its parents arrived a little late to the story because the law required him to be present at work is something the child may never consciously know, yet the quiet cost of that absence is later reflected in their relationship", the Court observed.
Considering the above, the Court, on the need for paternity leave, urged the Union to come up with a provision recognizing paternity leave as a social security benefit.
Accordingly, the Court allowed the Petition.
Cause Title: Hamsaanandini Nanduri v. Union of India & Ors. [Neutral Citation: 2026 INSC 246]
Appearances:
Petitioner: Advocate on Record Mukesh Kumar Singh And Co., Advocate Bani Dikshit, Advocate Uddhav Kumar, Advocate Krishan Kumar, Advocate Mukesh Kumar Singh, Advocate Narendra Kumar Goyal, Advocate Jeetendra Kumar, Advocate L Sivaraman, Advocate T Geetha, Advocate Ganesh Kamath, Advocate Rohit Dubey, Advocate Kajal Rani, Advocate Komal Singh, Advocate Kadam Hans.
Respondents: Additional Solicitor General K.M Nataraj, Advocate on Record Amrish Kumar, Advocate Shailesh Madiyal, Advocate Sandeep Kumar Mahapatra, Advocate Vatsal Joshi, Advocate Praneet Pranav.