The concept of maternity leaves in India has been enshrined under the Maternity Benefit Act, 1961 which grants women with statutory leave during the pregnancy. However, there are no laws or regulation enacted by the government which mandates organisations to provide paternity leave. Thus, any individual cannot request paternity leave as a right and the concept of the paternity leave is governed by the employment contract or the policies of the organisation.
This article establishes the legal regime in respect of paternity rights and the guidelines applicable to parental leave in India. It will also provide,operational insights into the paternity leave in India, framework for paternity leave policy India, and the changing status quo of Private sector paternity leave India.
In India is paternity leave legal or not?
The grant of paternity leave in India is not compulsory and shall be implemented by the organisations based on its internal practices and policies. The Indian legal regime does not provide a statutory law which enforces an obligation on the employer to provide paternity leave in the private sector.
While the law shows a significant difference between maternity leaves and paternity leaves whereby the maternity leaves are granted as a statutory right whereas paternity leaves in India lack the statutory obligation on the employers within India.
To conclude on the legality of the paternity leaves in India, the statutory position is as follows:
- Paternity right is not a statutory right in India and organisations in the private sector are not obligated to provide paternity right.
- Service rules provide employees of government with the right to paternity leaves.
Any paternity leaves in private sector shall be governed by the employment agreement and the internal policies.
Does India have a central paternity law that gives paternity leave to the employees in the private sector?
The Central Government has not enacted any labour statute obligating the employer to grant paternity leave to the employees of the private sector.In contrast to the obligations on the employer to provide maternity benefits which are governed by the Maternity Benefit Act, 1961, the paternity laws lack the following:
- No statutory requirements to grant a specific minimum number of paternity days.
- No stipulated minimum wage during such paternity leave.
- No penalty provisions for failing to provide the paternity leave.
- Consequently, the paternity leave is policy and agreement driven in the private sector in India and the employer may voluntarily grant the following:5 to 20 days of paid paternity leave.
- Neutralized leave policies for childbirth.
Where the leave is included in a company policy or an employment contract, the paternity leave becomes a part of an obligation on the employer and, as such, is enforceable. Without such documentation, employees do not have a statute claim to seek a paternity leave.
Is paternity leave as contained in the Maternity Benefit Act, 1961?
No, paternity leave is not stipulated under the Maternity Benefit Act, 1961 and the provisions of the act are applicable exclusively to women employees.
Under the provisions of the Act, women who are eligible to receive the benefits can seek the following:
- 26 weeks of paid maternity leave.
- The 12 weeks under specified circumstances.
- Adoptive and commissioning maternity leaves.
- Creche services in facilities in organisations that have 50 or above employees.
These laws are implemented for maternity protection in India and does not apply to fathers.
Organisation as well as employees should not assume the extension of the maternity benefits to the scope of paternal rights as the regulations governing the concept does not specifically provide paid paternity leave or introduce a gender-free parental leave system. Any assumptions to extension of the same lacks legal basis and would not be enforceable in the court of law.
Although subject to the employer’s discretion, the organisation can implement policies at will involving the provision of similar benefits to both males and females.
Do the employees in the private sector have a central law that grants them paternity leave?
No, the India legal system does not presently have any central law that gives paternity leave to workers in the private sector.
However, there have been active steps which have been undertaken such as the proposed Paternity Benefit Bill, which was proposed, however the same was not implemented. The aim of the bill was as follows:
- Obligated the employers to grant 15 days of paid paternity leave.
- Employees who became father on account of adoption were also covered.
- Covered the establishments that had a minimum threshold of employees.
Nevertheless, the Bill is yet to come into force. Consequently, the grant of paternity leave India is presently governed by the atemployers.
From a statistical point of view, many corporate employers are voluntarily offering:
- 5-15 days paid paternity leave.
- Long term unpaid leaves.
- Gender neutral parental leave models.
These entitlements are not rights but are a good initiative undertaken by the employer and is policy driven.
Is there any provision in the Maternity Benefit Act of 1961 which offers paternity leaves?
No, the Maternity Benefit act, 1961 is only related to female employees.
The Act provides the following maternity benefits:
- 26 weeks maternity leave.
- 12 weeks in case of specific situations.
- The act is applicable on both the adoption and commissioning mother.
Thus, when examining the issue of paternity and parental leave in India, the benefits of the maternity cannot be stretched, on interpretation, so as to implement the same to fathers.
What is the paternity leave of the government employees in India?
The Central Civil Services (Leave) Rules, 1972 provides paternity leave to government employees. Under these rules, the paternity rights are as follows:
- Male government servants are allowed 15 days of paternal leave.
- The leave can be obtained within a period of six months after delivering.
- Leave granted pursuant to the rules are paid leaves.
The provisions under the rules are also applicable on the adoptive fathers under certain conditions.
Key Features of Government Paternity Leave
In the system of Central Civil Services, the key provisions of governing the paternity rights are as follows:
- The maximum leaves granted under the rules are 15 days.
- The government employee is entitled to a full salary during leave.
- The leave can only be availed within six months after childbirth or adoption.
- The government employee cannot seek benefits under the rules after the birth of two or more offsprings.
The leave is not at will and are statutory obligations as the rules clearly establishes the statutory intent for the extention of the leaves to the paternity leaves.
Does the government offer paternity leave to adoptive father employees?
Yes, the rules also provides provision for paternity leave to adoptive fathers but such leaves are subject to the conditions such as the age of the adopted child. But beyond the government employees the paternity leaves available to adoptive father shall solely be governed and interpreted by the employment agreement and the organisation’s internal policies.
Are the private companies in India required to offer paternity leave?
No, the private companies in India are not under statutory obligation to provide its male employees with paternity leave. The grant of paternity leave in private sector is at the sole discretion of the employer and is entirely policy and employment agreement driven and it is not mandated by law.
In practical terms, the paternity leave status at the moment is as follows:
- The amount of paid leave usually is 10-20 days provided by multinational corporations.
- Startup companies tend to offer shorter leaves to its male employees.
- Some private employers prefer to implement a gender-neutral parental leaves policy.
Employers who create a Parental leave policy India should be able to guarantee:
- Non-discrimination based on gender.
- Clarity on eligibility which may be based on number of offspring along with other factors.
- Defined duration of leaves i.e. number of leaves.
- Treatment of the parental leaves during the probation.
The absence of paternity leave does not lead to imposition of the statutory penalty.
Can employers deny paternity leave if there is no internal policy?
Yes, unless the private employer has provided specific terms governing the paternity leaves under its employment agreement or the internal policies. Without either a policy or contractual obligation, no statutory claim of paternity leave may be enforced in private employment.
However:
- The denial should not be discriminatory, and the use of leave policy should be uniform.
- Negative behaviour in absence caused by childbirth can increase the problem of industrial dispute.
Due to the lack of statutory requirements for a paid paternity leave in the private employment, there exists an uncertainty in compliance.
What are the other parental leave rights in India other than the maternity leave?
Leave arising out of childbirth in India is largely governed by the Maternity Benefit Act and as such there is a lack of established paternal leave regime. Beyond the maternity coverage, the broader concept of paternity and parental leave in India is not applicable to private organisations.
Child Care Leave (CCL) is the main parental leave benefit that is provided on top of the maternity leave to only a few government employees.
What is Child Care Leave (CCL)?
Child Care Leave enables government workers specifically to women, but in some instances, the leave is being offered to single male parents as well to have long childcare leave.
Features include:
- Up to 730 days during service.
- Maximum number of children for whom the parent can seek such leave is two.
- Subject to conditions the leaves may be paid.
The Child care leave is one of the most supportive leave in India available to the parents, albeit in government jobs.
Do fathers qualify as recipients of Child Care Leave?
While in conventional sense the CCL is limited to female employees. However with the recent developments, there have been few extensions offered to single male parents.
This does not constitute a statutory right to all male employees and are subject to conditions.
What are the maternity leave policies that indirectly have an impact on parental leaves?
In India, parental leave policies are largely prepared based on the maternity leaves provisions. The Maternity Benefit Act, 1961 contains the following:
- The obligation to grant maternity benefits available for the first two children is 26 weeks paid leave.
- 12 weeks on other children.
- 12 weeks adoption leave (when adopted mothers of children who are below a certain age).
- Eligibility requirements of Creche facilities where the number of employees in the establishment is more than 50.
In areas where employers are voluntarily providing gender-neutral leaves, the employers should ensure that maternity requirements are incorporated into the policy to ensure compliance with the law.
Is paternity or parental leave available in cases of adoption or surrogacy?
Adoption leave is known to adoptive mothers in the Maternity Benefit Act. Due to lack of statutory requirements, adoption leaves for a father in a private company is subject to the discretion of the employer and cannot be claimed as a right.
The issue of surrogacy-related leave is considered concerning commissioning mothers under the maternity law.
In the non-government sector, paternity and surrogacy leave for the father will solely rely on the employment agreement and the policy within the company.
Is it possible that an employer rejects a paternity leave or dismisses an employee on the leave?
The authority of the employee to reject a paternity leave is subject to the nature of the job of the employee. In a government jobs, the refusal to grant paternity leave shall be subject to contravention of the law unless the circumstance related to the paternity leave is contrary to the eligibility criteria under the law.
In private employment, the governance of the grant of leave is determined by the following:
- In case paternity leave is provided in the employment contract, the denial may be deemed as breach of the contract.
- If no provision for paternity leave is present in the policy or the contract, the rejection of the paternity leave is under the sole discretion of the employer.
Nonetheless, without the protection of the law, there is limited enforcement of the paternity leave.
Employers planning Policies on Private sector paternity leave India must:
- Define approval mechanisms.
- Guarantee job security.
- Explain how benefits will be treated during leave.
Do the Labour Codes have a likely effect on paternity and parental leaves?
The statutory requirement to grant paternity leave is not implemented under the Labour Codes.
Thus there is no express parental leave regime in:
- Code on Wages.
- Code on Social Security.
- Industrial Relations Code.
- Code on Occupational Safety, Health and working conditions.
The legislative amendment can be done in the future as Paid paternity leave legal rights could be expanded, but in the meantime, no legislative amendment was announced. Employers must keep track of the progress of the labour reform debates.
Frequently Asked Questions (FAQs)
Is paternity leave paid or unpaid in India?
The nature of employment shall determine whether a paternity leave is paid whereby if the employee is a government employee, the employee will be entitled to paid paternity leave wheras the employees in private sector shall receive paid paternity leave only where it is expressly provided under employement agreement or employer policy.
Can paternity leave be taken in installments?
The manner of availing paternity leave depends on the governing service rules or employer policy. Under the Central Civil Services framework, paternity leave is ordinarily granted as a continuous block within the prescribed time period following childbirth or adoption. While in the private sector the mechanism is determined by the internal policies.
Are contract employees entitled to paternity leave?
Contract employees are entitled to paternity leave only if such leave is granted to it under the employment agreement or the employer policies. The contract employee does not have a statutory right to paternity leave under general labour legislation in India. Unless the employment contract, collective agreement, or internal policy provides otherwise, there is no automatic extension of Paid paternity leave legal rights to contractual or fixed-term workers. The legal framework governing Paternity and parental leave in India does not presently create universal coverage across employment categories.
Can employees claim paternity leave through court if denied?
The employee in the private sector can seek legal remedy only if paternity leave has been enshrined under its employment agreement or the employer policies.
For government employees, denial contrary to service rules may be challenged through administrative or judicial mechanisms.
Conclusion
Paternity and parental leave is largely unregulated in India. While maternity benefits are codified, paternity leave in India are largely determined by the employment agreements and the internal policy. Government employees are entitled to certain paternity benefits however these provisions are not available to the private sector.
In the absence of uniform legislation:
- Paternity leave in India is primarily governed by internal documents such as the employment agreement and the internal policies.
- Paternity leave India remains at the sole discretion of the employer.
- Broader Parental leave policy India is shaped by corporate governance and diversity objectives rather than statutory mandate.
- Limited Childcare leaves available to the employees in the public employment.
- Pending enactment of a statutory regulation governing the paternity leaves in India.
Employers should draft clear policies ensuring careful balance of operational requirements and the best practices. Employees should examine internal policies and employement agreement to ascertains its rights or lack thereof of the paternity rights.
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