Legal Essays and Articles

  • Article Posted By: SHUNMUGAPRIYA.K Posted on : 3/5/2017 12:00:00 AM


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    Paternity leave is a benefit given to a male employee on becoming a parent. Paternity leave is generally a short period of leave for the father immediately following childbirth. Its aim is to enable fathers to assist the mother to recover from childbirth, which is also crucial in establishing breastfeeding, take care of the newborn as well as other children, attend to the registration of the birth and other family-related responsibilities. Paternity leave is either provided as a separate leave measure for fathers or included in the “special leave” provisions to which all employees are entitled. In that case, the birth of a child or “family events” are listed among the grounds for taking a specific number of days off, in addition to annual leave. Where national legislation does not include provision for either paid or unpaid paternity leave, collective bargaining agreements may provide for such leave.

    With an increasing number of nuclear families, the government has realized the need to introduce this policy. This benefit is also being given to an apprentice, which is a good move. However, the benefit is not a mandatory requirement unlike the maternity leave.

    Globally, it was Sweden that introduced the concept of paternity leaves. In 1974, they pioneered the concept of parental leave where both parents were encouraged to take time off when a child was born. But only six per cent of fathers availed the benefit. In the year 1995, to be fathers were reprimanded by the government with the introduction of a one month  paternity leave with a caveat: `If the men did not avail this leave, to be with their newborn, the families will lose one month of subsidies from the government'. In the hope of further amplifying the role of fathers, in 2002, the government added a second month to an already existing plan. This resulted in a drastic reduction in divorce and separation in Sweden.




    Paternity leave defined as “a leave period – paid or unpaid- reserved for fathers in relation to childbirth or leave that can be used exclusively by fathers as paternity leave. It does not include parental leave provisions that can be used by the father or mother or parts of maternity leave entitlements that the mother can transfer to the father. It includes “special leave” provisions in addition to annual leave that may be used by fathers at the time of birth, but which are not strictly “paternity leave”. This indicator does not specify whether the leave period is paid, the level of cash benefits or their duration over the statutory paternity leave period.[1]




    This research aims to study and understand the current need of the society, regarding the need of the paternity leave in India.




    • To find out the need for the paternity leave in India
    • To emphasise on the importance of the Paternal leave
    • To find out the lacuna in the Indian Legislation regarding the Paternity leave
    • To find out the supporting International Instruments on Paternity leave.
    • To substantiate Paternity leave more as a responsibility, than as a right.




    The Indian Legislation has several acts which provides for the paternity leave but the society remains unaware of their right regarding the paternity leave and hence the importance of it does not come into light yet. The Employees of the Public sector and Private sector could not voice out their rights as our Indian legislations remains silent on it and it only envisages on the right of paternity leave of government employees. There is no separate legislation in India for providing Paternity leave and it finds no space under Maternity Benefits Act, 1961. It is been found that there is no direct international instrument on insisting paternity leave and there is only supporting instruments by which the paternity leave can be claimed by the fathers.






     It is an Exploratory and analytical research where primary and secondary data is collected accordingly. Primary data is collected with the help of various books, journals and statutes and secondary data is collected with a help of various websites and statistical data is recorded based on the field visit regarding the same.





    The study sample comprises only of male member as the study is mainly based on the emphasis for paternity leave






    The Labour Ministry, on the recommendation of the Ministry of Women and Child Development, will amend the Maternity Benefit Act, 1961, to increase maternity leave in the private sector from 12 weeks to 26. This is being done to factor in six months of exclusive breastfeeding required for a child’s physical well-being. There is silence, however, on paternity/parenting leave in the private sector. In emphasising only on the maternity aspect without addressing the issue of parenthood, the proposed change in the law ignores the highly skewed gender distribution of unpaid work in India. In 1997, the Central Civil Services Leave Rules brought in paternity leave for men in government service. Those with fewer than two surviving children are allowed 15 days of fully-paid leave which may be combined with other leave. The provision was extended to adoptive fathers in 2009. For the private sector, though, policymakers failed to see the link between division of labour at home and equality at the workplace. This, despite separate reviews of the law by the Labour and WCD[2] Ministries making a compelling case for introducing the concept in India.              

                By a review[3] said in 2014, “…The right to paternity leave could be crucial for changes in the relationships and perceptions of parenting roles… The Maternity Benefit Act does not entitle working men such leave, and thereby does not make an adequate effort in the struggle towards a gender-balanced approach to care-giving and unpaid domestic work.”                                                                                                        

    In the absence of a legal framework, the matter is left to individual companies. In most cases, such leave to male employees, if granted, is restricted to a week or two.                                 Since Sweden pioneered the concept four decades ago, paternity leave has been enshrined in the laws of 78 of 167 countries for which the International Labour Organisation has information. But the take-up of parental leave is in many cases highly gendered, with mothers availing it much more than fathers. Sweden, for instance, discovered in 1995 that men did not avail of even 10% of their eligibility. The country has constantly fine-tuned its policy since then, from reserving one month of parental leave as an exclusive ‘daddy’s month’, to 16 months of paid parental leave, of which three months have to be taken by the father before the child’s eighth birthday. Several countries have amended laws to make the leave available to fathers non-transferable, compulsory or incentive-driven. Iceland, Norway, Portugal and Germany, besides Sweden, have registered remarkable improvement in take-up rates among men by tweaking legislation over time.                                                                            ILO figures show Indian women on average spend 297 minutes daily on unpaid work, mostly caring for children or elders; the average male, on the other hand, puts in just 31 minutes. No wonder India is bucking the global trend of improved gender parity in labour force participation. The proportion of female labour force participation in India is just 27%, as compared to 79.9% among men.    As the practice of equally shared parenting fast gains traction in the West, India could pave the way for attitudinal change by making changes on the legislative front. This would allow fathers to be just as engaged in childcare, while enabling women to balance their productive and reproductive roles. Though its the mother who actually delivers the child, father plays an equally important role. A father is expected to be emotionally and physically available for both, mother and child, before and after the delivery. In fact, legally accepting and providing two months of paternal leave has resulted in a reduced divorce rate in Sweden.        In India, the Central Government in 1999 by notification under Central Civil Services (Leave) Rule 43-A & 43-AA  and  6th CPC[4] has made provisions for paternity leave for a male Central Government employee (including an apprentice and probationer).




    Rule-43 A: Paternity leave

    (1)  A male Government staff (including an apprentice) with less than two surviving children, may be granted Paternity Leave  by an authority competent to  grant leave for a period of 15 days, during the confinement of his wife for childbirth, i.e., up to 15 days before, or up to six months from the date of delivery of the child.

    (1) During such period of 15 days, he shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.

    (2) The paternity Leave may be combined with leave of any other kind.

    (3)  The paternity leave shall not be debited against the leave account.

    (4)  If Paternity Leave is not availed of within the period specified in sub-rule (1), such leave shall be treated as lapsed.


    For paternity leave he shall be paid leave salary equal to the pay last drawn immediately before proceeding on leave. Also, the same rule applies when a child is adopted.





    The Rule 551 (A)--

    A male CG servant (including an apprentice) with less than two surviving children may be granted Paternity Leave for a period of 15 days during the confinement of his wife i.e. upto 15 days before or upto six months from the date of delivery of child and if such leave is not availed of within this period it shall be treated as lapsed.

         The 7th recommendation included the adoptive fathers on valid adoption of a child below the age of one year, may be sanctioned Paternity Leave for a period of 15 days within a period of six months from the date of valid adoption.

           It shall not be debited against the leave account and may be combined with any other kind of leave (as in the case of Maternity Leave). It shall not be refused under any circumstances. Paternity Leave too, like Maternity Leave can be sanctioned only in a single spell. During the period of such leave he shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.

    While paternity leave is sanctioned for government employees, there is not any such law that indoctrinates the private sector to make it obligatory. Hence, paternity leave is open to interpretation by individual companies.

    Despite there being no legislation, the New Delhi High Court in 2009 passed a judgement[5] allowing paternity leave in private schools with Chandramohan Jain, a private school teacher, getting his deducted salary back as his leaves were recognised as Paternity leaves by the court.

    We all know and understand that for a healthy work culture and to get the optimum efficiency out of an employee, an employer must ensure to provide certain basic amenities like a comfortable work place, healthy working hours, giving the employee enough physical and mental rest etc. Being a country where our family is of first and foremost importance for us, an employer needs to keep in mind that having a child is a start to the chapter of family for almost all, hence, it is an utter necessity to provide reasonable amount of maternity as well as paternity leaves. We must not forget that for a vulnerable new mother and her newly born child, father is the most important person to be around.




    18(B) Paternity leave—


    (1) A male member of the Service (including a probationer) with less than two surviving children, may be granted paternity leave by an authority competent to grant leave for a period of 15 days, during the confinement of his wife for childbirth, i.e. up to 15 days before, or up to six months from the date of delivery of the child.

    (2) During such period of 15 days, he shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.

    (3) The paternity leave may be combined with leave of any other kind.
    (4) The paternity leave shall not be debited against the leave account.
    (5) If paternity leave is not availed of within the period specified in sub rule (1), such leave shall be treated as lapsed.

    Note:- The paternity leave shall not normally be refused under any circumstances.







    Paid maternity leave for 12 weeks has been mandated in India for Government employees, by law since 1961. Paternity leave, on the other hand, is a matter left to individual companies. Last year, in a move described variously as path-breaking and unprecedented, some of the companies in India increased paid maternity leave while simultaneously announcing a week’s paid paternity leave.

    And yet, paid paternity leave on par with maternity leave is crucial for reasons that go beyond symbolism and beyond the obvious need for fathers to bond with their children.
























    From the above collected data it is evident that some of the popular private sectors have already started granting paternity leave where some companies grant paid leave and some just grant leave.

                It is clear that, the private sectors have started realising the importance of paternity leave in India though they are not legally bound to grant such leave to its employees. But at the same time no law stops them from granting paternity leave to its employees.

                It is found that the private sector employees cannot claim their paternity leave through the claim of law as there is no domestic legislation made in India for private sector employees. If at all when a need arises they can invoke the International instruments in the court of law to claim their defence.







    The right to paternity leave is on the move, however, there are not as many statements regarding this right particularly; most documents simply state that  men  and  women  should  have  equal  responsibility  in  the  home.


    Firstly, CEDAW’s complaints procedure under its Optional Protocol can be used to claim the right to paternity leave. A request to be granted paternity leave as a  way  to  the  realization  of  gender  equality  under  e.g.  Article  5(b)[6]  or 11(2)(b)[7] of CEDAW[8] in  conjunction  with  Article  2[9]  may  be  submitted.  There is no specific right in CEDAW providing for paternity leave. The best chance to claim such a leave would be under Article 5, 11 or 16[10]. To date there has not been any individual complaints under the CEDAW Optional Protocol regarding paternity leave or parental leave.

    Secondly, under Article 2 of the UDHR[11] lays out the basic principle of equality and non-discrimination when it states that everyone is entitled to all the rights set forth in the Declaration and that no distinction shall be made in the realisation of these rights.


    Thirdly, is to submit a claim under Article 23(4)[12] and 26[13] of the ICCPR[14] can be used  if  a  law  or  policy  discriminate  against  men  and  by  not  offering paternity leave or parental leave to men but offer this to women. An individual compliant can be submitted to the Human Rights Committee claiming discrimination. The possibility to submit an individual complaint is a possibility for people under the jurisdiction of States, which are part of the Optional Protocol to the ICCPR. Based on the jurisprudence of the HRC it seems very likely that they would rule in favour of a complaint of a father. It is also possible to submit a complaint regarding provisions in other Conventions, which may be relevant if a person under the jurisdiction of a specific country has not signed an optional protocol of CEDAW or want to argue that rights under ICESCR or CRC have been violated.


    Fourthly, it may be in the best interest of a child, CRC[15] Article 3[16], to be able to bond equally with both its parents. Additionally, according to Article 18(1)[17],(2) & (3)[18] States Parties shall ensure the recognition of the principle that both parents share the responsibility in the upbringing of their children.


    Fifthly, under Article 10 of the (ICESCR)[19] establishes that States must provide protection and assistance to families for the care and education of their children.


    Sixthly, International Labour Organization (ILO) Convention 156 on Equal Opportunities and Equal Treatment for Men and Women Workers implicitly recognizes the responsibility of men and women in the provision of childcare in order to ensure that, whatever their kind of employment, both may enter the labour market on an equal footing with those who do not have parental responsibilities.


    Seventhly, The 48th Session of the CSW[20] on the Role of Men and Boys in Achieving Gender Equality[21] stated that it recognizes in its agreed conclusions that “everyone benefits from gender equality and that the negative impacts of gender inequality are borne by society as a whole”. Therefore it emphasizes that “men and boys, through taking responsibility themselves and working jointly in partnership with women and girls, are essential to achieving the goals of gender equality, development and peace”.  The Commission also urged Governments and other UN and private entities to “enhance awareness and knowledge among men and women on their roles as parents and the importance of sharing family responsibilities”


    Furthermore, it should be noted that Member States should abide by their obligations in all the Conventions they are part of no matter if they have signed an Optional Protocol.


    In addition, there is an additional possibility for those persons under the jurisdiction of  EU Member States or the Council of Europe Member States to investigate proceedings against their country if denied the right to paternity leave in the ECJ or ECHR.




















    Why is it important for the contemporary father to play more than a prescribed, perfunctory role at childbirth?

    Paternity leave gives men an opportunity to develop a stronger bond with the child from birth. Policies like these are adopted to stay in touch with the present generation's reality and their challenges. These policies help better employee-employer relations, enhance employee satisfaction and hence better engagement at work. It supports employees and encourages them to give their best when at the workplace.

    Assume a scenario when a father wants to be with his newborn and wife and has just joined an organization. New employees, who do not have any leaves accumulated, will have to take leave without pay. Hence, to make their experience comfortable, most companies have introduced this policy. A few traditional sectors like manufacturing, construction, etc, have not yet adopted this policy but intend to do so soon.

    The important point is whether this is sufficient as most private companies are averaging around five days of paternity leave. There are organizations which have started extending the duration of this leave for up to 15 days as they believe it is an extension of addressing their gender issues and helps make men sensitive to a family's needs.

    Post maternity responsibility is one of the main reasons why women take a career break and organizations that want to further their diversity agenda need to focus on this policy. Some variation to this can be to provide flexible working hours during the first few months, say by allocating a few hours of work each day based on an employer's needs. Also to check if this is being misused, the leave and related benefits need to be availed within the first six months only.

    Organizations can also provide professional counselling on topics like child care, stress management and early parenthood. It is equally essential and highly important that the father takes equal responsibility in the upbringing of the child and organizations need to support this in all the possible ways.






    Paternity leave help fathers to be present during and few days after the birth of the child and thus helps in fostering father-child attachment.

    People started talking about paternity leave in India almost a decade ago. However, not many are aware that the central government has a mandated paternity leave policy that provides leave for a central government employee for a period of 15 days so that he can take care of his wife and the newborn. This leave can be taken only when the father has less than two surviving children and he can avail the leave of 15 days before or within 6 months from the date of birth of the child.

    If the father does not avail paternity leave within that period, it will be considered as lapsed. He will be paid the leave salary equal to what he draws before taking the leave. The law gives this provision in the case of adoption as well. This leave is authorized for government employees in India and there is no law that instructs the private sector to make it compulsory. It is open to interpretation by companies individually.

    a. Importance of Paternity Leave

    Paternity leave gives the expecting  father an opportunity to develop stronger bond with his child from its birth. This is helpful only when the father is not thinking about meeting deadlines, clients and deals and achieving targets and other work stress.


    b. Supporting Wife during Labour


    Nowadays, fathers are allowed to be with their wives in the labour as well. They understand how painful the whole process is and this helps them have better and strong bonding with their wives too along with the child. The society has unnecessarily kept fathers out of all this for a long time.

    c. Sharing Parenting Responsibility

    Today people understand that parenting is a shared responsibility of both, father and the mother. The presence of father at the time of childbirth makes him sensitive towards the special needs of the child. The experience will bring more caring, affectionate and better fathers. Many women are career oriented these days and at the same time many are postponing motherhood simply because this would impact their career. Paternity leave will make them feel that their partners are also involved and participate in parenting the child equally. This will promote sharing of the responsibility and this is definitely going to make bonds between husbands and wives stronger along with having a special bonding with the child.


    d. Building Family

    Paternity leave benefits the whole family along with increasing the sense of confidence and comfort with parenting in men. They take in child-care duties openly and get involved in child’s life years earlier.

    e. Family Friendly Policies

    According to the law, if the paternity leave is not taken within a specific time period it gets lapsed. This will also lead many men to take some day off and welcome their bundle of joy with a free mind. This makes the father take part in the family and he starts taking larger share of responsibility at home and that too very early.

    A stronger father child attachment and equal division of responsibility at home will make fathers more responsible. Countless studies have shown that both, the father and the child get benefited by this early bonding.

    However, many men do not take paternity leave because they fear hurting their career, sacrificing income and a strong work ethic. This is keeping them away from their newborns. They are not ready to take an extended time off from their work to spend with the newborn.














    The hypothesis made on this study is finally made to be true. Though Indian government has passed legislations for Government employees which supports paternity leave it failed to make provisions regarding the private and public sector employees. And when private sectors are concerned they really started realising the urging need for paternity leave for their employees and many private sectors has already started giving paternity leave for their employees though they are not legally bound to grant such leave. But since it’s 2016, maybe it’s time to start giving more importance to paternity leave and realise the need of it in the current scenario in a way where,  fathers getting the same time off as mothers, three months each, would be a good time to have a lead ahead.

    In a Global scenario, only 48 countries have legislated leave provisions to be used at the time of birth. Out of which countries which grant paternity leave for men are very meagre.

    But yet there is considerably strong International instruments for the men to invoke their paternity leave before the court of law. As our Indian law has no separate legislation for providing paternity leave to the men, the claim can be only made by the citizen by invoking the International instruments and Natural justice before the court of law.

    Last but not least, throwing a light on my final objective of this study granting paternity leave to the men should not only be considered as a right to men but should be considered more as a responsibility than as a mere human right. Its a mandating fact that the men should borne all the burden of the family equally not only by way of financially supporting but also morally supporting. The concept of gender equality will only make sense when there is equal responsibility borne by both the gender of the family.




    If we are to achieve gender parity, then we need to break free of gender stereotypes for women and men. Lopsided child-care policies reinforce the idea of women as natural nurturers and men as natural providers.

    Equal paternity leave will also enable a more equitable sharing of unpaid care work. All over the world, it is women who shoulder a disproportionate burden in caring for children and elderly parents, cooking, cleaning and so on—work that we see as essential, but somehow never grant the same respect or status as paid work outside the house.

    In November last year, the McKinsey Global Institute found that women in India do nearly 10 times more unpaid care work than men, far above the global average of three times. If these women participated in the economy at par with men, our GDP would go up by at least 16% by 2025, found the report. But granting men equal paternity leave goes beyond GDP and economics. It acknowledges the role, responsibility and capacity of men as care-givers. It invests them with the dignity and expanded scope of being more than just providers but also responsible fathers, sons and husbands. Given what’s at stake, I’m surprised men aren’t agitating harder for more paid time off to care for newborn children.

    At a time when many corporate are struggling to retain mid-level female talent, it is odd that almost no one is talking about paternity leave at par with maternity leave. In many instances, women are reluctant to take extended leave, even when such facilities are extended to them, for fear of being regarded as somehow less professional and less eager to compete. The unstated fear also is that when they return after six months (or more), they might lose out on seniority, or be regarded as dispensable. Therefore, the leave-taking policies should be made gender-neutral, to attain the gender equality and responsibility as well.




























    [1]  charts/WCMS_241699/lang--en/index.html


    [2] Ministry on women and child development

    [3] Centre for Social Research for the National Commission of Women

    [4] Central Pay Commission Recommendations

    [5] Shri Om Pal Singh vs South Eastern Rly. Chakradharpur

    [6] To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases

    [7] prevention of discrimination against women on grounds of marriage or maternity

    [8] Committee on the Elimination of Discrimination against Women

    [9] Deals with the different policy measures States Parties are obliged to undertake

    [10] Deals with Marriage and Family Life

    [11] Universal Declaration of Human Rights

    [12] State Parties “shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, in marriage and at its dissolution, under General comment No.28, Equality of Rights between Men and Women (Article 3)

    [13]It entitles everyone to equality before the law and that the  legislator  shall  guarantee  equal  and  effective  protection  of  the  law against discrimination.

    [14] The International Covenant on Civil and Political Rights (ICCPR)

    [15] Convention on the Rights of the Child

    [16] fundamental to the whole Convention and states that a child’s best interest shall be the primary consideration in all actions concerning children.

    [17] Parties shall ensure the recognition of the principle that both parents share the responsibility in the upbringing of their children

    [18] States shall try to assist parents in their responsibilities and provide child-care assistance for working parents.

    [19] The  International  Covenant  on  Economic,  Social  and  Cultural  Rights

    [20] The Commission on the Status of Women

    [21] UN Doc. E/2004/27-E/CN.6/2004/14, Commission on the Status of Women, Report on the 48th Session (1-12 March 2004) - Agreed Conclusions of the Commission on the Status of Women on the Role of Men and Boys in Achieving Gender Equality, Official Records ofthe Economic and Social Council, 2004, Supplement No. 7, Chapter I(a)(III).


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