ARTICLE
21 December 2023

Analysis Of Paternity Leave In Modern India And Beyond

Parental leave plays a pivotal role in enabling parents to be present during these crucial stages of a child's life.
Worldwide Employment and HR
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  1. Introduction

In the dynamic and evolving landscape of modern India, where societal structures are shifting towards nuclear families and dual-income households, the significance of parental leave has come to the forefront. This transformation is a result of changing societal norms, economic opportunities, and the desire of both parents to actively engage in their careers and parenting responsibilities. Amidst these shifts, parental leave has emerged as a crucial tool for nurturing families and facilitating a balanced approach to parenthood, especially during the formative years of a child.

Parental leave plays a pivotal role in enabling parents to be present during these crucial stages of a child's life. By offering dedicated time for parents to care for and bond with their child, parental leave not only nurtures the family unit but also contributes positively to the child's upbringing, setting the stage for a healthy and prosperous future.

In the context of India, parental leave is predominantly structured around two significant types: Maternity Leave and Paternity Leave. Maternity Leave, historically well-recognized, is provided to mothers to recuperate from childbirth and attend to the immediate needs of their newborn. In contrast, Paternity Leave, though gaining recognition, is yet to be legislatively established in the same manner, with its availability often being at the discretion of employers or limited to specific sectors.

Currently, India lacks comprehensive paternity laws that mandate paid leave for fathers in both public and private sectors. While maternity leave is an established provision to support mothers during the crucial period surrounding childbirth and infant care, the absence of parallel paternity laws perpetuates a gendered imbalance in parental responsibilities. This absence not only limits fathers' active involvement in the early years of their child's life but also reinforces traditional gender roles.

In a society that is increasingly acknowledging the importance of shared parenting and gender equality, the necessity for paternity laws becomes more evident. By formalizing and mandating paternity leave, India can encourage fathers to actively engage in childcare responsibilities, promote equal participation in parenting, and ultimately contribute to a more balanced and nurturing family environment.

This article advocates for formalized and mandated paternity leave in India. It delves into the concept of paternity benefit and the impact it has on the family. Furthermore, the article discusses the current laws revolving around the concept with a global perspective of the benefit available to fathers in the corporate structure.

  1. Understanding Paternity Leave: A Critical Component of Family Well-being

Paternity leave represents a designated period of paid leave that allows fathers to actively engage in parenting during the early stages of a child's life1 . This crucial time offers fathers the opportunity to share caregiving responsibilities, forge a profound emotional connection with their child, and provide support to the mother. It is an essential element in fostering a family-centric approach to parenting, encouraging gender equality, and promoting a nurturing environment for children.

The presence of a father during the initial years of a child's life has a significant impact on the child's development2 . Studies suggest that children with involved fathers tend to have better cognitive, emotional, and social development. Paternity leave facilitates this involvement, allowing fathers to actively participate in the child's routines, feedings, and overall care3 . The father's engagement aids in building a sense of security, trust, and affection in the child, shaping a strong parent-child bond from the very beginning.

Paternity leave not only benefits the child but also supports the mother during the postpartum phase. After childbirth, mothers require ample time to recover physically and emotionally. The assistance and shared responsibilities provided by the father during this period significantly alleviate the mother's burden, allowing her to rest, recover, and establish essential routines4 . Emotional support and shared childcare responsibilities contribute to reducing stress levels, which is vital for the overall well-being of the mother.

By granting fathers the opportunity to actively participate in childcare through paternity leave, family dynamics are positively impacted. The father's involvement in household chores, caring for the child, and sharing responsibilities creates an equitable division of labor within the family. This fosters an environment of collaboration, understanding, and mutual support, setting a precedent for the child to witness and emulate as they grow.

From the Corporate perspective, incorporating paternity leave into workplace policies has a dual benefit:

  1. it supports the well-being of employees
  2. enhances organizational culture.

Employees who are provided with the opportunity to take paternity leave demonstrate higher job satisfaction and increased loyalty towards their employer5 . Consequently, this contributes to a motivated and dedicated workforce, positively influencing productivity and the overall work environment. Employers, recognizing the importance of work-life balance and family support, are increasingly implementing family-friendly policies. Paternity leave is a pivotal aspect of such policies, allowing companies to attract and retain top talent while fostering an inclusive work culture that values employees' personal lives.

  1. Laws pertaining to paternity benefit in India

Currently, India does not have specific paternity leave laws applicable across all sectors.

For Male Government employees, the Central Civil Services (Leave) Rules, 1972 provides paternity leave either 15 days before to or within a six-month period following the birth of their kid, or during the process of adopting a new child6 . The Rules also provide for paternity leave may be used at any time throughout the process of fostering a child.

In addition, the ability to take Child Care Leave (CCL) was extended to male government employees in October 20207 . CCL stands for Child Care Leave. However, the Child Care Leave (CCL) provision and the related privileges will only be accessible to male employees who meet the requirements to be considered single parents. This restriction applies to both the provision and the advantages.

This group includes male workers which fall into the following categories:

  • widowers,
  • divorcees, or
  • single men who have taken on the entire responsibility of caring for their children.

For private corporations there is no legal requirement for them to adhere to specific regulations however they have the autonomy to create their own paternity leave policies. Despite this, a considerable number of private enterprises opt to provide paternity leave as a benefit to their staff. Prominent companies such as Tata Consultancy Services (TCS), Wipro, and Zomato have instituted family-friendly paternity leave policies for their employees.

Even in the judicial sphere, there is not a single case-law dealing with this issue of lack of legislation in the private sector for dealing with paternity leaves/benefit. There have been numerous instances where a request for paternity leave has been brought to the attention of the judiciary, but no uniform policy has been established. The petitioner in Chander Mohan Jain v. N.K Bagrodia Public School8 contested the defendant's rejection of his paternity leave request and salary deduction for taking time off to care for his wife and newborn child. Regardless of the lack of regulations, the New Delhi High Court declared that in this case, all male employees of unaided certified private schools are entitled to paternity leave. As a result, private-sector professors are relieved because they are within the authority of the Director of Education and so eligible for paid leave.

In the case of Rakesh Malik v. State of Haryana9 , the petitioner requested paternity leave which was rejected. He sought the Court to formulate such policy under the ambit of Article 226 in his challenge. Furthermore, in Vijendra Kumar v. DTC10 , the DTC driver submitted an original plea, but the Court dismissed the appeal, claiming that the DTC had no provisions for paternity leave and that the CCS Paternity Leave guidelines had not been approved. A lack of judicial precedents creates a road bump in the formulation of a formal legislation for paternity benefit in the country.

Pursuant to the need of a legislation, a bill discussing paternity benefit was introduced in the Lok Sabha in 2017. The same has been analyzed in the coming chapter which discusses various aspects of the bill.

  1. Analysis of The Paternity Benefit Bill, 2017

In September 2017, Mr. Rajeev Satav introduced the Paternity Benefit Bill11 , following the enactment of the Maternity Benefit (Amendment) Act, 2017. This bill aimed to safeguard the rights of working men concerning paternity rights. It covered various essential aspects, as outlined below:

The bill extended its coverage to the entire nation and applied to all types of establishments, be it government-owned or private, including self-employed individuals and those in the unorganized sector with fewer than ten employees. Under this bill, eligible employees were entitled to receive paternity benefits at a rate equivalent to their average daily wage for days worked or the minimum wage specified in the Minimum Wages Act, 1948, or ten rupees, whichever amount was the highest, during their paternity leave.

To qualify for paternity benefits, a man had to have worked in the establishment for a minimum of eighty days within the twelve months immediately preceding the expected delivery date of the child. This condition did not apply to men who had recently relocated to the state with a pregnant wife. The bill stipulated that any man with fewer than two surviving children could receive paternity benefits for fifteen days, with no more than seven days preceding the expected delivery date. The leave could be taken within three months following the child's birth. The bill also covered exceptional cases, such as when a man passed away shortly after the child's birth, ensuring the nominee received the benefits.

The Central Government would introduce a Parental Benefit Scheme to provide paternity benefits to every eligible man under the provisions of this bill. The government would establish a Parental Benefit Scheme Fund, to which employees, employers, and the Central Government would contribute in prescribed ratios. This fund would cover the costs associated with providing paternity benefits.

The Bill required the Employers to make advance payments of paternity benefits upon the production of proof of the wife's pregnancy. Subsequent payments were to be made within forty-eight hours of proof submission. It made it unlawful for employers to dismiss or discharge employees during or because of their paternity leave absence or to issue notice of dismissal or discharge to coincide with such leave. The appropriate government could appoint Inspectors to oversee the implementation of this bill. These inspectors were considered public servants under the Indian Penal Code, 1860.

Employers failing to provide paternity benefits as required by this bill could face imprisonment for a minimum of three months, extendable to one year, and a fine ranging from twenty thousand to fifty thousand rupees. In cases of miscarriage, the bill stipulated that employees were entitled to wages equivalent to the paternity benefit rate for seven days immediately following the miscarriage.

According to this bill, any man legally adopting a child below three months of age or the legal husband of the commissioning mother would be eligible for paternity benefits for fifteen days starting from the day the child was handed over to the adopting father or legal husband.

The primary objective of the Paternity Benefit Bill, 2017, was to provide benefits to natural parents, adoptive parents, or individuals acting as caregivers to children. This legislation aimed to benefit the approximately 32 crore men in India's labor force, including those in the unorganized sector. It sought to ensure that fathers could support mothers during and after childbirth, reducing the pressure on mothers to return to work immediately. By extending a fifteen-day paid paternity leave to all sectors, India aimed to join the ranks of the top thirteen countries worldwide offering this benefit.

  1. Global Perspectives

Across the globe, countries have taken diverse approaches to accommodate the changing dynamics of modern parenthood. From Japan's generous year-long provision to the United States' complex state-specific laws, paternity leave policies vary significantly, reflecting cultural norms, economic factors, and social progress. A detailed comparison of jurisdictions are as follows:

  1. United Kingdom12 :

In the United Kingdom, the policy of Statutory Paternity Leave offers employees the option to select either a one-week or two consecutive weeks' leave, and this duration remains consistent even if there are multiple children, like twins. Commencement of the leave cannot occur before the birth and must align with the actual birth date, a mutually agreed upon number of days post-birth, or a specified period after the anticipated childbirth week. Additionally, the leave period must conclude within 56 days following the birth (or the due date if the baby arrives early). It's important to note that start and end dates may differ for employees involved in the adoption process. Regarding Statutory Paternity Pay, qualified employees are entitled to receive either £172.48 per week or 90% of their average weekly earnings, depending on whichever amount is lower. Taxes and National Insurance are subject to deduction. Different employment categories, such as agency workers, directors, and educational workers, may have specific rules governing their entitlements.

  1. United States:

As such, The United States does not provide for any kind of national mandated paternity leave , however The Family and Medical Leave Act (FMLA) provides for unpaid time off, whereas certain states and private companies offer paid leave. At the same time laws regarding paternity leave differ across states and even within various cities. Although there is a clear and urgent demand for paternity leave in the United States, only a limited number of states and cities have enacted specific legislation addressing this need. Eight states, including California, New Jersey, Rhode Island, New York, Washington, Massachusetts, Connecticut, and Oregon, in addition to the District of Columbia, have instituted their individual paid family leave programs, incorporating compensation for parental leave based on a percentage of the employee's salary.

  1. Japan:

Japanese fathers are entitled to a full year of paid leave for the care of a newborn child13 . During this period, they receive compensation equivalent to 67% of their regular salary for the first 180 days and 50% for the remaining period, with the government covering the cost14 . It is important to note that this provision is separate from maternal leave, which mothers can also avail of, in addition to the paid leave available to fathers.

  1. South Korea:

South Korea introduced its paternity leave policy in 2007 when it was uncommon for men to take such leave. By 2018, 17% of parents who took leave were men, but a government report found that many still feared the impact it might have on their careers. Fathers in South Korea can take 3-5 days of paternity pay, with the first three days fully paid and the last two unpaid. Subsequently, they are entitled to one year of parental leave, with payments set at 80% for the first three months and 50% thereafter.

  1. Spain:

In Spain, there has been a substantial augmentation of paternity leave from a fortnight to eight weeks between 2016 and 2019, further extending to 12 weeks in 2023 and now to 16 weeks, aligning with the duration of maternity leave in the country15 . During their paternity leave, fathers in Spain are compensated with their full salary, and they do not have the option to transfer any unused weeks to their partners.

  1. Sweden16 :

In Sweden, fathers or the non-pregnant parent are entitled to take a 10-day paid leave, receiving 78% of their earnings during the child's birth. Furthermore, both parents have the opportunity to divide up to 480 days of parental leave, with 90 days specifically allocated for each of them. Fathers as well as mothers have the option to utilize 195 days at 78% of their earnings and an additional 45 days at a set rate of 180 kronor per day, contingent on meeting specified work history and income requisites.

  1. Conclusion

The discourse on parental leave in India, as well as the global landscape, underscores the evolving dynamics of family structures, gender roles, and workplace expectations. The recognition of parental leave as a critical component of family well-being is paramount, especially in the context of India's shifting societal norms toward nuclear families and dual-income households. In India, while Maternity Leave has been long established and recognized, Paternity Leave remains a subject of debate and discretion, predominantly at the employer's behest. The lack of thorough paternity legislation sustains gender disparities in parental duties, constraining fathers from actively participating in the initial stages of their child's life.

The introduction of the Paternity Benefit Bill, 2017, represented a significant step toward addressing this issue by proposing formalized paternity leave provisions applicable across all sectors. The bill aimed to provide equitable paternity benefits to men across the nation, fostering gender equality and acknowledging the importance of fathers' presence during childbirth and infancy. Drawing inspiration from global perspectives, nations like Japan, South Korea, Spain, Sweden, and the United Kingdom have implemented progressive paternity leave policies. These policies prioritize fathers' active involvement in childcare, contributing to healthier family dynamics and enhanced workforce productivity.

To propel progress, India should consider several key strategies. Firstly, implementing comprehensive paternity leave legislation which considers the Paternity Benefit Bill, 2017 with a few changes across all sectors is crucial. Secondly, initiating widespread awareness campaigns is essential to educate employers, employees, and society at large about the pivotal role of paternity leave in promoting gender equality and enhancing family well-being. Additionally, encouraging various private corporations to embrace paternity leave, is vital to attract and retain talent, fostering a work culture that values employees' personal lives. Furthermore, establishing a government-funded scheme to support paternity leave, with contributions from both employers and employees, would enhance financial viability for all stakeholders. Building a repository of legal precedents in the private sector that acknowledge paternity leave is important to ensure consistency and fairness among employers. Lastly, consistently evaluating and adopting international best practices in paternity leave policies, drawing insights from countries with successful inclusive family-friendly policies, is a prudent step forward.

In conclusion, formalizing paternity leave policies and promoting shared parenting responsibilities is not just a matter of gender equality but also a fundamental step towards building stronger, happier, and more balanced families and workplaces.

Footnotes

1 R, D. (2023). A Study on the need for Paternity Leave for Private Employees in India. International Journal of Creative Research Thoughts, Volume 11, ISSN: 2320-2882. Available at: https://ijcrt.org/papers/IJCRT2305757.pdf.

2 Boneschi, S. (2019). Five reasons why paternity leave needs to get more attention | United Nations Development Programme. [online] UNDP. Available at: https://www.undp.org/eurasia/blog/five-reasons-why-paternity-leave-needs-get-more-attention.

3 Lodha, N. (2018). Paternity Leave: A need for better Parenting. International Journal of Law and Legal Jurisprudence Studies, ISSN:2348-8212, Volume 5 Issue 1, http://ijlljs.in/wp-content/uploads/2018/10/Paternity-Leave-need-for-better-parenting.pdf.

4 Dhanuka, A. and Banthia, K. (n.d.). Paternity Benefit Leaves in India: Need, Cost and Gender Reform. International Journal of Policy Sciences and Law, Volume 1, Issue 4, [online] 1(4). Available at: https://ijpsl.in/wp-content/uploads/2021/06/Paternity-Benefit-Leaves-in-India-Need-Cost-and-Gender-Reform_Ananya-Dhanuka-Kashish-Banthia-1.pdf.

5 https://www.mckinsey.com/capabilities/people-and-organizational-performance/our-insights/a-fresh-look-at-paternity-leave-why-the-benefits-extend-beyond-the-personal

6 Rule 43-A, The Central Civil Services (Leave) Rules, 1972. https://documents.doptcirculars.nic.in/D2/D02est/ConsolidatedCCSRulesiAmwP.pdf

7 https://news.abplive.com/news/india/female-single-male-govt-employees-entitled-for-730-days-of-child-care-leave-centre-tell-lok-sabh-1621737

8 Chander Mohan Jain v. N.K Bagrodia Public School W.P (C) No. 8104 of 2009

9 Rakesh Malik v. State of Haryana CWP No.3225 of 2013

10 Vijendra Kumar v. DTC O.A./2513/2014

11 http://164.100.47.4/billstexts/lsbilltexts/asintroduced/678LS%20AS.pdf

12 https://www.gov.uk/employers-paternity-pay-leave#:~:text=Welsh%20(Cymraeg).-,Statutory%20Paternity%20Leave,cannot%20start%20before%20the%20birth.

13 https://worldpopulationreview.com/country-rankings/paternity-leave-by-country

14 https://www.tokhimo.com/post/maternity-paternity-and-childcare-leave-in-japan-1#:~:text=In%20Japan%2C%20parents%20are%20entitled,child%20is%20one%20year%20old.

15 https://www.idealista.com/en/news/legal-advice-in-spain/2023/07/05/132404-maternity-and-paternity-leave-in-spain#:~:text=Fathers%20in%20Spain%20are%20entitled,pubish%20women's%20professional%20careers%20less.

16 https://ec.europa.eu/social/main.jsp?catId=1130&intPageId=4808&langId=en#:~:text=Parental%20benefit%20is%20240%20days,been%20taken%20for%20the%20child.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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