AUTHOR:

Mr. VINUDEEP R.,
Student,
Tamil Nadu National Law University, Tiruchirappalli  

CO-AUTHOR:

ABSTRACT

The concept of the mother being the caretaker of children and father working to sustain the family has been the long standing norm of the Indian society – even in most matrilineal and matriarchal communities. However, life is dynamic and so is society. The question now is whether the mother getting benefits or a holiday is sufficient for the wellbeing of the child and whether the father has a role to play in the growth of the child. This paper shall discuss the need for the father to be with the child in its formative days. This paper shall also discuss various jurisdictions that already have such provisions allowing fathers to get off their job for a while in taking care of their child. Further, this paper shall discuss the necessity of such laws in India and shall recommend, if necessary, changes to be made in existing laws.

Introduction

India being a diverse and ancient country, the role of fathers in the process of bringing up the child is equally diverse. We have a range of societies and classes in the country that needs to be touched upon. However, this not being the central subject of the paper, the researcher would confine with only two major cultures – both antique. The researcher would make references to Sanskrit and Tamil literature alone, considering the importance to be given to the first chapter. These literatures by and large show no big reference to a father bringing up the child. It was always more of the child being sent off to the teachers’ place to learn their skills.

The trauma of colonisation has heavily engraved the concept of patriarchy in the country’s law. These laws, thanks to the Supreme Court, are being challenged for being unconstitutional. However, there is still a lack of laws that are gender neutral and those that promote gender equality. Many jurisdictions like Norway, Sweden and Iceland have paid leave for fathers after childbirth. This leave provided to fathers is nicknamed daddy quota. Certain other jurisdictions provide for the leave only for a small period of time. Single fathers seem to be neglected in most of the cases.

The Role of the Fathers in Child-Rearing in India

The Indian sub-continent boasts a very long history and rich heritage. However, we also see a strong scent of patriarchy and male dominance in the society that is always engrained. All our epics show that it is the women that take care of the children in their childhood and are later the burden shifts to men when they are grown up and are old enough to learn their life skills. To prove this point, we shall discuss the stories of one character each of Ramayana and Mahabharata each and also discuss to see as to what Thiruvalluvar has to say about the role of men to their children.

Ramayana

In the Ramayana, we shall discuss the life of Rama. Rama is the son of Dusseratha. Dusseratha had many wives, five of whom find prominent place in the epic. For the purposes of this discussion, we confine to Kousalya – the biological mother of Rama and Kaikayee – his foster mother. We see in the epic that Dusseratha, being the king, did not participate in the process of upbringing his children.[1] The four princes – Rama, Lakshmana, Bharatha and Shatrugna were brought up by their mothers. In the same epic we see that Rama, after rescuing Sita from Lanka, sends the pregnant Sita to the forest. Lava and Kusha, his children are born there and he does not see them until the Aswamedha ritual.[2] We see that there was no obligation on the father to take care of the children after child-birth.

Mahabharatha

Krishna was born in a prison cell and was taken to Gokula by his biological father and left in the house of Yashoda and Nanda. Nanda, again being the head of the village and the tribe, did not take part in the raising of his son. It was Yashoda who took an active part in raising the child.[3] Also, the women of Gokula played a major role in the upbringing of Krishna. When it comes to the nurturing of the children of the Pandavas, though not much is not spoken about it, it is the women who did all the preliminary nurturing.[4]

Thirukkural

Thirukkural is the general ethics guide of Tamil. It is so ethically coded that it would find application in all societies irrespective of the differences that we may have. In Chapter 7 of the Thirukkural, while speaking about wealth of children, in Kural 67, he says that the duty of the father toward the child is to make him stand out in the crowd and be in the forefront of any place of wisdom.[5] While talking about the role of women, Thirukkural is silent on the issue. The place where Thirukkural mentions mother in Kural 69, where he says that the mother is most happy when she hears that her son is a learned person.[6]

            From these, we get to know that impliedly, it was always the job of the women to take care of the infants and the men were more into protecting the women and children. Also, the English usage of the term women and children also leads us to believe that the custodians of infants were always mothers.

Paternity Benefit Laws in India

Nothing has changed from the discussion above in India. It has always been the job of the women to take care of the infants in India, and it continues to be so even today. This leads us to the first by-question of this section – What are the benefits that a mother gets once she gives birth to a child? Section 5 of the Maternity Benefits Act, 1961, provides 26 weeks of paid leave to a woman delivering her baby, of which 8 weeks of leave shall be preceding her date of delivery. Section 11A has also mandated crèches to be established and maintained in organisations with more than fifty employees. There is also a provision for adopting, surrogate and commissioning mothers[7] also in the amendment of 2017.

            Given these provisions, we move to the second part of this section – What is wrong with these provisions? Let us discuss the three provisions aforementioned alone. The paid leave provided for women before and after childbirth is not applicable to men. This clearly excludes men from taking care of their newborn child or taking leave for the same. This leads us to question whether the Parliament feels that it is not the duty of the father to take care of the child. There are biological shortcomings for fathers. They cannot feed the baby, but they can nurse the baby. It is the view of the author that is nonetheless the duty of the father to nurse the baby.

            The next provision in question is Section 11A of the Maternity Benefits Act, inserted vide an amendment in 2017. The wordings of this provision is as below –

‘‘11A. (1) Every establishment having fifty or more employees shall have the facility of créche within such distance as may be prescribed, either separately or along with common facilities:

Provided that the employer shall allow four visits a day to the crèche by the woman, which shall also include the interval for rest allowed to her.”[8]

A plain reading of this provision does not seem to show any problem prima facie. However, a closer reading would show that in the proviso to section 11A, we see that this section applies only to women. The proviso says that the employer shall allow four visits a day to the crèche by the woman. Question arises as to whether the Parliament feels that only women are entitled and obligated to meet their children in the crèche? Also, the question also arises as to whether it is the Parliament’s thought that men have no privilege to take their children with them to work.

            Section 5(4) provides for maternity leave for women that adopt children below the age of three months and also surrogate and commissioning mothers. It reads as follows –

‘‘(4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.”[9]

 These provisions clearly show the intention of the Parliament to exclude men from parenting. There has been a lack of application of the mind while drafting these provisions. Is it fine for the Parliament if single men need to adopt a child and they cannot afford to get paid leave?

            The discussion of these provisions bring us to the last and the most important question that is left to be answered in this section – Is there no provision for men to take leave on parenthood? The answer to that question would be yes, but is limited to a very few privileged class of men. The Central Civil Services (Leave) Rules, 1972, Rule No 43-A provides for male government servants to take fifteen days paid leave. The provision is as below –

43-A. Paternity leave (1) A male Government servant (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.

 NOTE: – the Paternity Leave shall not normally be refused under any circumstances.”[10]

However, these rules are only applicable to government servants appointed by central civil services with certain exceptions.[11]

In Chander Mohan Jain v. N.K. Bagrodia Public School[12], a private school teacher took leave on child birth and applied for leave as per the aforementioned provision. The Delhi High Court held that the teacher was entitled to paternity leave as per the aforementioned provision.

Paternity Benefit Laws in Other Jurisdictions

Having discussed the paternity benefit laws in India, the next leg of the discussion shall be the provision for paternity benefits in various other jurisdictions. For this the researcher shall confine with Norway, Iceland, Sweden and Spain alone.

Norway

Norway has a very special paternity benefits provision that has earned its nickname the father’s land. The guardian reporting on the said provision reads thus –

“In Norway this family revolution has a name: pappapermisjon. After every birth, the parents both benefit from a two-week leave and then divide up the 46-week parental leave paid at 100%, or alternatively, 56 weeks paid at 80%. In this way Norwegian babies spend their first year with both their parents. To encourage men to take care of their children, a special 10-week quota is reserved for them. If they are reluctant to take pappapermisjon, they lose the 10 weeks, since the time can’t be transferred to the mother and the whole family loses out. The results have been spectacular. In Norway, 90% of fathers take at least 12 weeks’ paternity leave.”[13]

Pappapermisjon translates to Daddy Quota. Fathers may avail this quota of leave on their childbirth. This provision enables the father to jointly take leave with his wife to take care of the baby. A forty six week period that the couple may split is ideally twenty three weeks each or as they deem would be good for their baby.

Iceland

Iceland provides the couple a total of nine months leave. Three months for the mother, three months for the father and another three months that they may split among themselves.[14] This provision also is as good as the previous one, pursuing gender equality in parenting.

Sweden

The Parental Leave Act, 1995 (Föräldraledighetslagen) provides for a 480 day leave that the Swedish government encourages the father and the mother to split. This provision is not only for couples but also extends to the persons who have received custody of children.[15] Writing about the said policy in the Local, James Savage says –

“In line with the Swedish state’s strict policy of promoting sexual equality, mothers and fathers are expected to share the 480 days equally. It is possible for one parent to take up to 420 days of the total leave, but the remaining 60 days are then reserved for the other parent. According to Mats Mattsson, head of the parental insurance section at Försäkringskassan, fathers have as much right to their 240 days paternity leave(‘pappaledighet’) as mothers do to their 240 days maternity leave (‘mammaledighet’).

The principle is that you split it in half, but that the father can donate part of his leave to the mother, or vice versa.

The only exception to this rule is for single parents with sole custody. In these cases, the parent can take all 480 days leave.”[16]

Spain

In Spain, there is a six week leave for mothers and five weeks for fathers. Further, there is a ten week leave that the couple may share among themselves. This year, the Spanish government plans on extending the leave provisions for men to eight weeks. Further, there is a plan to make it twelve weeks by 2020 and sixteen weeks by the year 2021.[17]

The Paternity Benefits Bill, 2017

Following the amendment to the Maternity Benefits Act, 1961 in the year 2017, a private member bill by Mr Rajav Sateev, an MP from Maharashtra named the Paternity Benefits Bill was introduced in the House of the People. This bill, inter alia, provides for fifteen days leave for the father, and other facilities discussed in section two of this paper.

            The fifteen days leave might not seem adequate. However, something is better than nothing. Everything starts somewhere, so starting here would be a great starter to the achievement of gender equality in the country. There are also provisions for crèches which can be used by men also. This will encourage fathers to take their children to work along with them and share a responsibility with their wives.

            Also, these provisions would come to the rescue of single fathers who would like to adopt the children or have lost their wives in the process of childbirth. Equal responsibility shared by men would mean that women would have more time to concentrate on their career and other aspects of their life.

            The statement and objects of the said bill reads –

“A paternity leave policy can help in incremental attitudinal changes and to remove gender role distinctions. The International Labour Organisation in its 2014 Report on Maternity and Paternity at work says, “Fathers who take leave, especially those taking two weeks or more immediately after childbirth, are more likely to be involved with their young children. This can have positive effects for gender equality in the home and at work and may indicate shifts in relationships and perceptions of parenting roles and prevailing stereotypes.” Introduction of paternity leave will ensure that the mother gets some support during and after childbirth and is not forced to return to the workforce in order to generate income.”

The Case for the LGBTQI+ Community

The adoption laws of India do not specifically require the parents to be heterosexual. With the judgements of the Supreme Court in National Legal Services Authority v. Union of India[18] and Navtej Singh Johar v. Union of India[19], the LGBTQI+ community is seeing new light in their lives. Perhaps, it is not long before the community is provided with civil relationship rights if not matrimonial rights. In that case, adoption and child bearing rights cannot be a bar on transgenders and the queer community. In fact, the Madras High Court in its judgement in Arunkumar v Inspector General of Registration[20] upheld the right of a transgender bride to register her marriage to a male person under the Hindu Marriage Act, 1955. Therefore, in these cases, the lacuna in the law needs to be addressed to allow parents from the LGBTQI+ community to take their time off their job and raise their children.

Conclusion

Following the amendment to the Maternity Benefits Act, 1961 in the year 2017, a private member bill by Mr Rajav Sateev, an MP from Maharashtra named the Paternity Benefits Bill was introduced in the House of the People. This bill, inter alia, provides for fifteen days leave for the father, and other facilities discussed in section two of this paper. However, in comparison to the provisions in the countries that were discussed, all or most of the provisions in the said Bill seems inadequate. So, what can be done?

            For the initial stages, this Bill might be bridging the gender inequality to some extent. Enacting such a legislation would be a first step towards bringing down the gap in parenting. The first and second sections of this paper clearly show us that the stereotypes of gender are clearly ingrained in the Indian society. There is only one rule that provides for paternity leave in India, which applies to a minuscule minority of the labour force of the nation. A situation where there is a single father to raise a child would be very difficult because the father would be forced to hire help or depend on someone else to take care of his child, which may not be economically feasible for many working men.

            The situation in the above discussed Norway, Iceland, Sweden and Spain would be a very great example of the world moving towards moving towards the goal of breaking gender stereotypes. Following this model would do great help to the society and help us reach an ideal state of gender equality, especially in parenting.

Suggestions

The role of a father is very important in the upbringing of a child in its formative years. Having discussed the concepts in Norway, Iceland, Sweden and Spain, it is expedient that the Union government tables a legislation to provide paternity leave or child-raising leave, as the case may be in the best interest of the new parent and the new life that has entered the world.

[1] Romesh C. Dutt, The Valmiki Ramayana (2006).

[2] Id.

[3] Romesh C. Dutt, The Mahabharata (2015). 

[4] Id.

[5] Thiruvalluvar, Thirukkural Verse 67 (2 B.C.)

[6] Id at Verse 69.

[7] Commissioning mothers are those mothers that give their ovary to the surrogate mother.

[8] Maternity Benefits Act, No. 53 of 1961, § 11A.

[9] Id at § 5(4).

[10] Central Civil Service (Leave) Rules, 1972, R. 43-A.

[11] See Id at R. 2.

[12] Chander Mohan Jain v. N.K. Bagrodia Public School, (2009) 163 DLT 1 (Delhi High Court).

[13] Anne Chemin, Norway, the Fatherland, Guardian, 19th July 2011.

[14] Bjorn Thor Arnarson & Aparna Mitra (2010) The Paternity Leave Act in Iceland: implications for gender equality in the labour market, 17(7) Applied Economics Letters 677-680.

[15] Parental Leave Act, 1995 §1.

[16] James Savage, How does Swedish Parental Leave work?, The Local 29th August 2008, available at https://www.thelocal.se/20080829/14022 (Last accessed 22nd March 2019).

[17] Pilar Alverez, Spanish government to raise paternity leave to 16 weeks by 2021, El Pais 25th February 2019, available at https://elpais.com/elpais/2019/02/25/inenglish/1551097343_062804.html (Last accessed on 22nd March 2019).  

[18] National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[19] Navtej Singh Johar v. Union of India, [2018] INSC 746. 

[20] Arunkumar v. Inspector General of Registration, WP(MD) No. 4125 of 2019, dated 22-04-2019.

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