# Saroj Kumari v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 182
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-14
- **Case number:** Writ-A No. 2211 of 2023
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saroj-kumari-v-state-of-u-p-ors-50090
- **Pages:** 6

## Headnote

Civil Law - Maternity Benefit - Maternity
Benefit Act, 1961 - Sections 5(1), (3) & (4)
- Right to payment of maternity benefit -
Every woman has the right to maternity
benefits - Her employer is liable to pay her
during the time she is absent from work
due to maternity - Provisions of the Act of
1961 also permits maternity benefit even
after the birth of the child - Denial of
maternity leave to the petitioner on the
ground that the child has already been
born and relegating the petitioner to avail
Child Care Leave is totally unwarranted -
Maternity benefit and Child Care Leave
operate
in
different
fields
and
are
mutually exclusive - Availability of Child
Care Leave to the petitioner or grant of
the same cannot disentitle the petitioner
from grant of maternity benefit - Child
Care Leave can be availed not only at the
point when the child is born but at any
subsequent period - Impugned order
quashed - District Basic Education Officer
further directed to release the arrears of
salary and pay the salary (Para 20, 22)
Allowed. (E -5)
List of Cases cited:

1 Smt. Anupam Yadav Vs St. of U.P. & ors.; Writ
(A) No. 9535 of 2022

## Text

182 INDIAN LAW REPORTS ALLAHABAD SERIES
are not in a position to accept the said
reasoning of the learned Judge. Firstly,
the
assumption
that
Section
25
recognizes
the
right
of
a
woman
bigamously
married
to
claim
maintenance at the time when a decree
of nullity is passed is not correct.
Secondly in the absence of a proceeding
under Sections 9 to 14, such a relief
cannot be granted by invoking Section
151.
Section
151
could
have
no
application to such a situation.

31. In view of the above
decision taken by us, the claim of the
respondent
for
maintenance,
whose
marriage is void ab initio, against the
appellant is not maintainable. Hence, the
decree and judgment in O.S. No.131/87
on the file of the Principal Subordinate
Judge, Chittoor, is liable to be set aside.

32. In the result, the appeal is
allowed. The judgment and decree in
O.S.No.131 of 1987 on the file of the
Principal Subordinate Judge, Chittoor,
is set aside and the suit O.S.No.131 of
1987 is dismissed. In the circumstances
of this case, parties are directed to bear
their costs throughout.

21. Considering the entire facts and
circumstances of the case, the grant of
maintenance under Section 25 of the Hindu
Marriage Act in favour of Preetam Kumari
when marriage has been declared null and
void by the trial court, cannot be
maintained in the eye of law. The suit for
declaring the marriage as null and void, has
been decreed by the trial court and the
decree has been affirmed in the first appeal,
as such, the first appellate court has
committed illegality in passing the order
for maintenance under Section 25 of the
Hindu Marriage Act. It is also material that
finding of the trial court has been
maintained in the appeal, as such, there was
no occasion to grant maintenance under
Section 25 of the Hindu Marriage Act in
favour of the respondent Preetam Kumari
coupled with the fact that there was no
application under Section 25 of the Hindu
Marriage Act, 1955 in civil appeal by
respondent-wife.

22. In view of the finding of fact
recorded by the trial court declaring the
marriage as void and ineffective, the grant
of maintenance under Section 25 of the
Hindu Marriage Act in favour of the
respondent Preetam Kumari is manifestly
erroneous and illegal. The substantial
questions of law nos. 1 & 2 are answered in
favour of appellant and against the
respondent.

23. In view of above, the part of the
judgment and decree of the lower appellate
court by which maintenance under Section
25 of the Hindu Marriage Act has been
granted by the first appellate court in Civil
Appeal No.44/2010 and 45/2010 is hereby
set aside. The second appeal stands
allowed. No order as to costs.
----------
(2023) 4 ILRA 182
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2023

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 2211 of 2023

Saroj Kumari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satyendra Chandra Tripathi

Counsel for the Respondents:
4 All. Saroj Kumari Vs. State of U.P. & Ors.
183
C.S.C., Sri Sanjay Kumar Srivastava
Civil Law - Maternity Benefit - Maternity
Benefit Act, 1961 - Sections 5(1), (3) & (4)
- Right to payment of maternity benefit -
Every woman has the right to maternity
benefits - Her employer is liable to pay her
during the time she is absent from work
due to maternity - Provisions of the Act of
1961 also permits maternity benefit even
after the birth of the child - Denial of
maternity leave to the petitioner on the
ground that the child has already been
born and relegating the petitioner to avail
Child Care Leave is totally unwarranted -
Maternity benefit and Child Care Leave
operate
in
different
fields
and
are
mutually exclusive - Availability of Child
Care Leave to the petitioner or grant of
the same cannot disentitle the petitioner
from grant of maternity benefit - Child
Care Leave can be availed not only at the
point when the child is born but at any
subsequent period - Impugned order
quashed - District Basic Education Officer
further directed to release the arrears of
salary and pay the salary (Para 20, 22)
Allowed. (E -5)
List of Cases cited:

1 Smt. Anupam Yadav Vs St. of U.P. & ors.; Writ
(A) No. 9535 of 2022

2. Deepika Singh Vs Central Administrative
Tribunal & ors., AIR 2022 SC 4108

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Sri Satyendra Chandra
Tripathi,
learned
counsel
for
the
petitioner, Shri Shailendra Singh, learned
Standing
Counsel
for
the
StateRespondent Nos. 1 & 2 and Sri Sanjay
Kumar Srivastava, learned counsel for the
Respondent Nos. 3 to 6.

2. By means of the present writ
petition, the petitioner has prayed for
issuance of a writ of certiorari quashing the
orders dated 14.11.2022 and 25.11.2022
passed by the Respondent No.4, District
Basic Shiksha Adhikari, Etah whereby and
whereunder the sanction of maternity leave
has been turned down by stating that "after
child birth ML is not allowed and now you
are eligible for CLL according rule" and
"for ML out of date. now you can apply for
CCL."

3. At the very outset, Sri Satyendra
Chandra Tripathi learned counsel for the
petitioner
submits
that
the
similar
controversy, as raised in the present
petition, has already been allowed by this
Court in a bunch of writ petition, leading
amongst them being Writ (A) No. 9535 of
2022 (Smt. Anupam Yadav vs. State Of
U.P. And 2 Others).

4. Learned counsel for the petitioner
prays that the present writ petition may also
be decided in terms of the aforesaid
decision dated 21.10.2022 passed in Writ
(A) No. 9535 of 2022 (Smt. Anupam
Yadav vs. State Of U.P. And 2 Others).

5. Shri Shailendra Singh, learned
Standing
Counsel
for
the
State
Respondents as well as Sri Sanjay Kumar
Srivastava,
learned
counsel
for
the
Respondent Nos. 3 & 4, have vehemently
opposed the prayer made in the petition
and submits that ratio laid down by this
Court in Smt. Anupam Yadav (supra)
heavily relied upon by the counsel for the
petitioner is not applicable to the case at
hand.

6. I have heard learned counsel for the
parties and have perused the record.
184 INDIAN LAW REPORTS ALLAHABAD SERIES

7. Before the Court proceeds to
examine the case of the petitioner on
merits, it deems it appropriate to clear the
mist that has engulfed the parties regarding
the applicability of the ratio laid down by
this Court in the case of Smt. Anupam
Yadav (supra).

8. In the case of Smt. Anupam Yadav
(supra) and the connected petitions the
challenge laid was to order passed by the
competent
authority/District
Basic
Education Officer whereby and whereunder
the sanction of maternity leave for 180 days
was turned down by stating that the same
was not admissible or on the ground that
the period of 02 years had not elapsed from
the date of expiry of the last maternity
leave granted to the petitioners under the
proviso to Rule 153 (1) of Chapter XIII of
the U.P. Fundamental Rules in Financial
Handbook Volume-II, Part 2 to 4. The
moot
question
was
regarding
the
applicability of the Maternity Benefit Act,
1961. There was no dispute with regard to
the applicability of Fundamental Rules i.e.
Rule 153 (1) of Chapter XIII of U.P.
Fundamental Rules in Financial Handbook
Volume-II, Part 2 to 4. The parties were at
variance
only
with
regard
to
the
applicability of Maternity Benefit Act,
1961. The Court after appreciating the
respective contentions of the learned
counsels for the parties and considering the
provisions of the Maternity Benefit Act,
1961 as also the relevant provisions of the
Financial Hand Book, particularly Rule 153
observed
that
the
State
Government
exercising powers under Section 28 of the
Maternity Benefit Act, 1961 had already
adopted the provisions of the Maternity
Benefit Act, 1961 for the benefits of its
employees. Once the provisions of the
Maternity Benefit Act, 1961 had been
adopted by the State of U.P. then the Act of
1961
would
apply
with
full
force
irrespective of the provisions contained in
the Financial Handbook which were held to
be merely executive instructions and
subsidiary to the legislation made by the
Parliament. The Court thus held that the
provisions of the Maternity Benefit Act,
1961 would prevail over the provisions of
the Financial Handbook and consequently,
the provisions of Rule 153 (I) of the
Financial Handbook Volume II to IV were
to be read down with regard to the
admissibility of leave to a woman with
regard to second pregnancy which would
be governed by the Maternity Benefit Act,
1961 and not Rule 153 (1) of the Financial
Handbook Volume II to IV. The writ
petitions were allowed accordingly.

9. In view of above, the Court finds
substance in the stand taken by the learned
counsel for the respondent. The only
benefit the petitioner may derive from the
ratio of the decision in Smt. Anupam
Yadav (supra) is that the grant of maternity
leave would be governed by the provisions
of the Maternity Benefit Act, 1961.

10. Now, the Court proceeds to decide
the lis on merits.

11. The undisputed facts are that the
petitioner is posted as Headmistress at
Primary
School,
Heerapur,
Block
Maarhara, District Etah on the institution
run by the Board of Basic Education, U.P.,
Prayagraj. The service conditions of the
petitioner are governed by the provisions of
Uttar Pradesh Basic Education (Teachers)
Service Rules, 1981.

12. Perusal of the record reveals that
petitioner was admitted in the hospital on
15.10.2022 and gave birth to a girl child
and after discharge from the hospital, she
4 All. Saroj Kumari Vs. State of U.P. & Ors.
185
immediately applied for maternity leave
through online for the period 18.10.2022 to
15.4.2023 (for 180 days). But the same was
rejected on the ground that annexures in
support
of
maternity
leave
were
incomplete. Thereafter, petitioner again
applied for maternity leave on 30.10.2022
on
the
prescribed
proforma,
but
surprisingly the same has been rejected by
the District Basic Education Officer, Etah
on 4.11.2022 and 25.11.2022 with remarks
that "after child birth ML is not allowed
and now you are eligible for CLL
according rule" and "for ML out of date.
now you can apply for CCL," respectively.
The above orders have been impugned in
the instant writ petition.

13. Learned counsel for the petitioner
contends that the Maternity Benefit Act,
1961 has been enacted by the Parliament to
regulate the employment of women in
certain establishment for certain period
before and after child birth and to provide
for maternity leave benefit and certain
other benefits. The provisions of the Act of
1961 permit maternity benefit even after
the birth of the child and as such, the denial
of the maternity leave to the petitioner on
the ground that the child has already been
born, the petitioner is not entitled to the
maternity leave is per se illegal and
erroneous. It is also contended that the
Child Care Leave is distinct to the
maternity benefit and operate in different
fields and relegating the petitioner to avail
Child Care Leave is totally unwarranted. It
is also contended that the respondents have
also stopped the salary of the petitioner
since November and December, 2022
which is also unwarranted.

14.
Learned
counsel
for
the
respondent have tried to justify the
impugned orders by submitting that the
orders are just and proper and do not
suffer from any infirmity or illegality
warranting any interference by this Court.

15. Having heard the learned
counsel for the parties and having
perused the record, the Court deems it
appropriate to refer to certain provisions
of the Maternity Benefit Act, 1961 which
are being reproduced below:

Section 3(h) of 1961 Act defins
"maternity benefit" to mean the payment
referred to in sub section (1) of section 5.

Section 5 of 1961 Act reads as
under:-

"5.
Right
to
payment
of
maternity benefit.-

(1) Subject to the provisions of
this Act, every woman shall be entitled to,
and her employer shall be liable for, the
payment of maternity benefit at the rate
of the average daily wage for the period
of her actual absence, that is to say, the
period immediately preceding the day of
her delivery, the actual day of her
delivery and any period immediately
following that day.

(2) No woman shall be entitled
to maternity benefit unless she has
actually worked in an establishment of
the employer from whom she claims
maternity benefit, for a period of not less
than [eighty days] in the twelve months
immediately preceding the date of her
expected delivery:

Provided that the qualifying
period of [eighty days] aforesaid shall
not
apply
to
a
woman
who
has
immigrated into the State of Assam and
was pregnant at
the
time of
the
immigration.

(3) The maximum period for
which any woman shall be entitled to
maternity benefit shall be [Twenty six
186 INDIAN LAW REPORTS ALLAHABAD SERIES
weeks of which not more than eight weeks]
shall precede the date of her expected
delivery:-

Provided
that
the
maximum
period entitled to maternity benefit by a
woman having two or more than two
surviving children shall be twelve weeks of
which not more than six weeks shall
precede the date of her expected delivery:

[Provided further that] where a
woman dies during this period, the
maternity benefit shall be payable only for
the days up to and including the day of her
death: [Provided also that] where a
woman, having been delivered of a child,
dies during her delivery or during the
period immediately following the date of
her delivery for which she is entitled for the
maternity benefit, leaving behind in either
case the child, the employer shall be liable
for the maternity benefit for that entire
period but if the child also dies during the
said period, then, for the days up to and
including the date of the death of the child.

(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]

(5) In case where the nature of
work assigned to a woman is of such nature
that she may work from home, the employer
may allow her to do so after availing of the
maternity benefit for such period an on
such conditions as the employer and the
woman may mutually agree]"

16. The preamble of the Maternity
Benefit Act, 1961 (Act No. 53 of 1961)
reads as under:-

"An
Act
to
regulate
the
employment
of
women
in
certain
establishment for certain periods before
and after child-birth and to provide for
maternity
benefit
and
certain
other
benefits."

17. Sub-section (1) of Section 5 of the
Act confers and entitlement on a woman to
the payment of maternity benefits at a
stipulated rate for the period of her actual
absence
beginning
from
the
period
immediately preceding the day of her
delivery, the actual day of her delivery and
any period immediately following that day.
Sub-section (3) specifies the maximum
period for which any woman shall be
entitled
to
maternity
benefit.
These
provisions have been made by Parliament
to ensure that the absence of a woman
away from the place of work occasioned by
the delivery of a child does not hinder her
entitlement to receive wages for that period
or for that matter for the period during
which she should be granted leave in order
to look after her child after the birth takes
place.

18. The Act of 1961 was enacted to
secure women's right to pregnancy and
maternity leave and to afford women with
as much flexibility as possible to live an
autonomous life, both as a mother and as a
worker, if they so desire.

19. From the perusal of the Preamble
of the Act, Section 5 (1), third proviso to
sub-section 3 of Section 5, sub-section 4 of
Section 5, it is more than apparent that the
Maternity Benefit can be extended even
after birth of a child. It can even be
extended in a case of a legal adoption of a
child or less than three months. The only
restriction being that the maternity leave
may not be granted for entire 180 days or
26 weeks. Further, in the opinion of the
Court, availability of Child Care Leave to
4 All. Smt. Gopa Bahadur Vs. State of U.P. & Ors.
187
the petitioner or grant of the same cannot
dis-entitle the petitioner for grant of
maternity benefit. Maternity benefit and
Child Care Leave both operate in different
fields and are mutually exclusive. The Apex
Court in a recent case reported in AIR 2022
SC 4108 (Deepika Singh versus Central
Administrative Tribunal and others) held
that independent of the grant of maternity
leave, a women is also entitled to the grant of
Child Care Leave for taking care of her two
eldest surviving children whether for rearing
or for looking after any of their needs, such as
education, sickness and the like. Child Care
Leave can be availed of not only at the point
when the child is born but at any subsequent
period. Both constitute distinct entitlements.
A purposive interpretation is required to be
adopted. The object and intent of the grant of
maternity leave would stand defeated. The
grant of maternity leave is intended to
facilitate the continuance of women in the
work place. It is a harsh reality that but for
such provisions many women would be
compelled by social circumstances to give up
work on the birth of the child if they are not
granted leave and other facilitative measures.
No employer can perceive child birth as
detracting from the purpose of employment.
Child birth has to be construed in the context
of employment as a natural incident of life
and the provisions of the Maternity Benefit
Act are required to be construed in that
perspective.

20. This Court is of the opinion that the
District Basic Education Officer, Etah while
rejecting the claim of the petitioner has
overlooked the provisions of Maternity
Benefit Act, 1961. In view of above, the
impugned orders dated 14.11.2022 and
25.11.2022 passed by the Respondent No.4,
District Basic Shiksha Adhikari, Etah is not
sustainable in the eyes of law and are set
aside. The writ petition is allowed.

21. The District Basic Education
Officer, Etah is directed to pass fresh
orders keeping in mind the provisions of
the Maternity Benefit Act, 1961, within a
period of two weeks from the date of
production of certified copy of this order.

22. The District Basic Education
Officer, Etah is further directed to release
the arrears of salary and pay the salary
month to month to the petitioner as and
when the same falls due.
----------
(2023) 4 ILRA 187
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Writ-A No. 2330 of 2023

Smt. Gopa Bahadur ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamlesh Kumar Yadav, Sri Vijay Kumar
Srivastava, Sri Ashok Khare (Sr. Advocate)

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra, Sri Chandan
Sharma

(A) Civil Law - Maintainability of second
writ petition - Code of Civil Procedure ,
1908 - Order 2 Rule 2 - Suit to include the
whole claim - while filing a petition or a
suit, whole of the claim, which the
plaintiff or the petitioner is entitled to
make in respect of a cause of action - shall
be required to be added failing which he
shall not afterwards be entitled to sue in
respect of the portion of the omitted or
relinquished claim - Explanation IV of
Section 11 - any matter which might and