This article is written by Rashi Singh, from Campus Law Centre, Faculty of Law, University of Delhi. The said article deals with the need for gender-just legislation addressing the paternity benefit provisions and what we can expect from such legislation.
Table of Contents
Introduction
Do you know when maternity leave was introduced in India? It was in 1961 when maternity leave was first introduced in India, allowing 12 weeks of paid leave to the mothers. Now, what about paternity benefit laws? Is there any provision related to paternity leave in India? India still has not any legislation available providing benefits to the fathers. In 2017, a private members bill “Paternity Benefit Bill, 2017” was introduced in the Lok Sabha. This article will cover the state of paternity benefit laws in India and how close we are to getting a law on the same.
State of maternity and paternity benefit laws in India
Maternity benefit Act, 1961
All the provisions related to maternity have been provided under the Maternity Benefit Act, 1961. The Act talks about maternity leaves, wages and other benefits to working mothers. The Act extends to any establishment and shops having more than 10 employees.
If a woman works in a factory with 10 or more employees, she is entitled to maternity benefits available under the Employees’ State Insurance Act, 1948. Earlier, the Maternity Benefit Act provided 12 weeks of paid maternity leave but after the 2017 Amendment, it got extended to 26 weeks paid maternity leave. Out of 26 weeks, up to eight weeks can be claimed before delivery. Also, you can claim all 26 weeks of leave after delivery. But, if the woman already has more than two surviving children, she is only entitled to a maternity benefit of 12 weeks. These are the maximum period of the claim, a woman can claim for a smaller period as well. If the nature of the work allows work from home, employers can also provide the same apart from the maternity benefit period.
An employer has no right to dismiss a woman employee for taking maternity benefits. He can not change the terms of service to the woman’s disadvantage during her maternity leave.
Paternity benefit rules
In 1999, the central government, notified under Central Civil Services (leave) Rules, introduced paternity leave in India. The rules allowed 15 days of paternity leave for a male central government employee (having less than two surviving children). This leave can be claimed 15 days before the delivery or within 6 months from the date of delivery of the child. The employee claiming leave is paid the same amount as the last drawn salary. However, these rules are only applicable to central government employees.
Private sector
Private sector employees are still deprived of such benefits, though individual companies are open to deal with the paternity benefits according to their own rules. There are private companies that extend paternity benefits to their male employees even in the absence of any legislation mandating this. Firstly, the Delhi High Court in the Chander Mohan Jain vs. N.K Bagrodia Public School, in 2009, recognised paternity leave when a private school teacher filed a petition in the court as the school rejected his leave and also deducted his salary. The court decided that all male employees of unaided organised private schools are entitled to paternity leave and directed the school to refund the deducted amount.
Private companies through their HR policies are providing some paternity benefits to their male employees.
UNICEF
United Nations Children’s Fund (UNICEF) became the first United Nations organisation after it extended paternity from four weeks to sixteen weeks worldwide. This step has been taken to provide fathers with more time to spend with their newborn child and the mother.
Rules in other countries
Sweden
Sweden saw a deep fall in divorce after it legislated on the paternity benefit provisions. Becoming the first country to provide paid paternity leave back in 1974, it grants the highest number of paid paternity leave among Nordic countries. Out of 480 days of paid leave, 90 days of leave is reserved solely for each parent. The remaining days can be shared among both parents.
Norway
Norway has introduced a “daddy quota” for fathers. It means that the leaves from this quota can not be transferred to the mothers. Daddy quota is for 15 weeks and a total of 49 weeks(fully paid) or 59 weeks (with 20% reduced salary) can be availed as parental leave.
Denmark
Denmark allows 52 weeks of parental leave. Though the daddy quota was abolished in 2002.
Finland
Recently, in 2020, Finland came with a law to grant an equal number of maternity leaves and paternity leaves becoming the first country to do so. 164 days of leave will be granted to every parent. Also, the law allows transferring 69 days of leave to the parents under quota.
Unpaid care work
Unpaid care work towards the family which is mostly a burden on the women of the world is done out of love. Women alone face the brunt of such a copious amount of unpaid care work. According to a report of the World Economic Forum, Indian women and girls put in around 3.26 billion hours of unpaid care work every day and the reason why it becomes important to address this issue through legislation is that this burden should be shared by both men and women.
Domestic and household chores are a continuous process but the social mindset always puts this burden only on the women of the country and it needs to be changed. Legislation addressing paternity benefit related issues can reduce the burden of unpaid care work as it will allow the father to be equally contributing to the care work of the child. This needs to be addressed so that to ensure equal participation from the mother and father both towards the unpaid care work of the child.
Paternity Benefit Bill, 2017
In 2017, after the Maternity Benefit (Amendment) Act was passed, a private member’s bill addressing the paternity benefit related issues was introduced in the parliament. The Bill was aimed at providing gender-neutral legislation to ensure parental benefits to the natural parents, adoptive parents, etc. Though the Bill was not passed in the parliament, it had some provisions which demanded our attention. Introduced by Congress MP, Rajeev Satav, the bill contained provisions such as: Duration of leave, parental benefit scheme, the applicability of the bill, the payment, working duration, advance payment of salary, no dismissal, etc.
Duration of leave
The Bill said that every man (having less than two surviving children) should be entitled to a paternity benefit for not less than a period of fifteen days (extendable up to three months) of which seven days preceding the expected date of delivery. It also provided that the paternity benefit shall be availed within three months from the date of delivery of the child.
Parental benefit scheme
The Bill proposed that the government should constitute a Parental Benefit Fund. The contribution should be made by the employees, employers and the central government in this fund. This fund would be used to meet the costs for the paternity benefit schemes.
Payment
The Bill was aimed at providing payment of paternity benefit at the rate of average daily wage to every male employee who has worked for not less than eighty days in an establishment immediately preceding the day after the expected date of delivery of the child to his legally wedded wife or commissioned wife. To calculate the average wages is the wages payable to the employee for the days on which he has worked during the period of three months immediately preceding the date from which he absents himself on account of paternity.
Applicability
The Bill was aimed to include the public and private sector i.e. organised and unorganised sector and self-employed.
Progress so far
As paternity benefit laws have been introduced in various other countries over time, India still does not have any legislation addressing this issue. Also, central government employees are entitled to a fifteen days paternity leave, private sector employees do not have such a right. But, at the same time, some Indian companies provide their male employees’ paternity leave even though there is no such legislation mandating the same. We will look at some of the companies which are providing paternity leaves to their employees:
Zomato
India’s largest food delivery company in a landmark move in 2019 announced that it will allow 26 weeks of paternity leave to its male employees. This period of paternity leave will be paid leave. This policy by Zomato also applies to surrogate parents, adoptive parents and also same-sex couples. As private companies are always reluctant to grant paternity leaves to their male employees in absence of any legislation, this move by Zomato is worth celebrating.
Novartis
Novartis is a Swiss-based pharmaceutical company having offices in India too. In 2019, it came with a global paternity leave policy across all its offices around the world. According to the policy, the company will allow 26 weeks of paid parental leave to the male and female employees.
IKEA
This Swedish company dealing in the furniture business having offices in India allows six months of paternity and maternity leave to their male and female employees. But as a requisite condition to avail paternity leave by the male employee, his wife should rejoin the work. The company aims to break the stereotype through this policy.
Amazon
The America-based company allows 6 weeks of paternity leave to the male employees. Also, it has a leave share plan which allows the employees to share their parental leave with the other spouse even if the spouse is not an employee of Amazon. The Ramp-back plan allows the employees to take up a flexible schedule with reduced working hours for 8 weeks.
Facebook allows 17 weeks of paternity leave to its male employees across its offices.
Deloitte
Deloitte also follows a healthy practice to allow 16 weeks of paternal leave to the employees.
Microsoft
Microsoft also decided to provide 12 weeks of paternity leave.
Deutsche Bank
Deutsche Bank became the first private company to provide 6 month-long paternity leave to the employees.
Starbucks
Starbucks provides 12 weeks of paternity leave to new fathers.
Similarly, some other companies allowing some sort of paternity leave include:
- Cisco(India) also provides 12 weeks of paternal leave to the employees.
- TCS allows just 15 days of paternal leave to its male employees.
- Infosys permits only 5 days of paternal leave.
- Ernst & Young provides only 7 days of paternity leave.
- Royal Bank of Scotland (RBS) allows only 5 days of paternity leave.
Conclusion
Paternity benefit to the father of a newborn is still taboo in a country like India. The absence of adequate paternity leave hampers equal gender relations not only at the workplace but also at home. Is India ready for legislation addressing paternity benefit related issues? Are Indian men ready to take parental leave and take care of their child?
Recently, we saw Indian cricket team skipper Virat Kohli requesting a paternity leave which was granted by the BCCI but we also witnessed the huge criticism faced by the skipper on the same. Mr Kohli was alleged of neglecting his national duty to perform the parental duty.
In India, it is still believed that taking care of a child is the mother’s responsibility, hence, the social mindset needs to be changed. Burdening only the mother to take care of the child compels them to take a long break from work which puts them in a disadvantageous position at the workplace. Hence, it is high time that India comes up with legislation that will not only ensure gender equality but will also allow the father to bond with his child.
References
- http://www.legalserviceindia.com/legal/article-2836-paternity-benefit-laws-in-india-a-necessity.html
- https://www.helplinelaw.com/family-law/MPBI1/maternity-leave-and-paternity-leave-benefits-in-india.html
- https://www.mondaq.com/india/employee-rights-labour-relations/877518/paternity-benefit-bill
- The Paternity Benefit Bill, 2017 By Shri Rajeev Satav, M.P.
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