placed on record a Division Bench Judgment dated 22nd July 2015 of
this Court (Coram: Smt Vasanti A.Naik & A.M.Badar, JJ) in Writ
Petition No.3288 of 2015 (Dr.MRS HEMA VIJAY MENON VS STATE
OF MAHARASHTRA & ORS) whereby it is specifically observed in
paragraph 7 as under :
“7. A woman cannot be discriminated as far as maternity benefits are
concerned, only on the ground that she has obtained the baby through
surrogacy. Though the petitioner did not give birth to the child, the child
was placed in the secured hands of the petitioner as soon as it was born. A
newly born child cannot be left at the mercy of others. A maternity leave
to the commissioning mother like the petitioner would be necessary. A
newly born child needs rearing and that is the most crucial period during
which the child requires the care and attention of his mother. There is a
tremendous amount of learning that takes place in the first year of the
baby's life the baby learns a lot too,. Also the bond of affection has to be
developed. A mother, as already stated herein above wold include a
commissioning mother or a mother securing a child through surrogacy.
Any other interpretation would result in frustrating the object of providing
maternity leave to a mother who has begotten the child.”
3. Having considered even Rule 551 (C) and (E) of Child
Adoption Leave and Rules, we find that a case is made out for grant
of interim relief in terms of prayer clause (b) as there is nothing in
Rule 551 (C) and (E) as referred above, which would disentitle
maternity leave to a women who has attained motherhood through
surrogacy procedure.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1727 OF 2015
Mrs Amisha Girish Ramchandani .. Petitioner
vs
The Divisional Manager
(Personnel Branch) Mumbai CST
CORAM : ANOOP V. MOHTA &
G.S.KULKARNI, JJ.
29 JANUARY, 2016.
1. Rule Returnable after six weeks for disposal.
2. The learned counsel appearing for the Petitioner has
placed on record a Division Bench Judgment dated 22nd July 2015 of
this Court (Coram: Smt Vasanti A.Naik & A.M.Badar, JJ) in Writ
Petition No.3288 of 2015 (Dr.MRS HEMA VIJAY MENON VS STATE
OF MAHARASHTRA & ORS) whereby it is specifically observed in
paragraph 7 as under :
“7. A woman cannot be discriminated as far as maternity benefits are
concerned, only on the ground that she has obtained the baby through
surrogacy. Though the petitioner did not give birth to the child, the child
was placed in the secured hands of the petitioner as soon as it was born. A
newly born child cannot be left at the mercy of others. A maternity leave
to the commissioning mother like the petitioner would be necessary. A
newly born child needs rearing and that is the most crucial period during
which the child requires the care and attention of his mother. There is a
tremendous amount of learning that takes place in the first year of the
baby's life the baby learns a lot too,. Also the bond of affection has to be
developed. A mother, as already stated herein above wold include a
commissioning mother or a mother securing a child through surrogacy.
Any other interpretation would result in frustrating the object of providing
maternity leave to a mother who has begotten the child.”
3. Having considered even Rule 551 (C) and (E) of Child
Adoption Leave and Rules, we find that a case is made out for grant
of interim relief in terms of prayer clause (b) as there is nothing in
Rule 551 (C) and (E) as referred above, which would disentitle
maternity leave to a women who has attained motherhood through
surrogacy procedure.
4. Stand over to 11th March 2016 for disposal.
5. Parties to act on the basis of the authenticated copy of
this order.
(G.S.Kulkarni, J) (Anoop V. Mohta, J.)
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