# Saumya Tiwari v. State of U.P. & Ors

- **Citation:** (2022) 1 ILRA 989
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-16
- **Case number:** Writ- C No. 20885 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saumya-tiwari-v-state-of-u-p-ors-47499
- **Pages:** 27

## Headnote

A. Constitution of India - Article 21 & 42 -
United Nation Declaration on Human
Rights - Article 25(2) - Maternity Benefit
Act, 1961 - Maternity leave - Motherhood
- Right of reproductive choice of a woman
- Dignified environment for motherhood
in pre or post natal period
- It's
significance - Held, motherhood is the
most sublime expression of Nature's
longing for life. Dignity of motherhood is
the highest manifestation of refinement in
the human race - The rights of the
petitioner
to
reproductive
choices,
marriage, procreation and motherhood are
entrenched as fundamental rights by the
law laid down by constitutional courts.
(Para 67 and 73)
B. UP Technical Universities Act, 2000 -
Absence of the provisions in respect of
granting the maternity leave or any
relaxation for expectant and new mothers
-
Validity
challenged
-
Held,
the
respondent University has neglected to
frame Regulations or create appropriate
legal instruments to provide for maternity
benefits to expectant mothers and new
mothers - By failing to frame Regulations
or appropriate legal instruments for grant
of maternity benefits and by declining to
grant such benefits to the petitioner, the
University has violated the fundamental
rights of the petitioner as guaranteed
under Articles 14, 15(3) and 21 of the
Constitution of India and as expounded in
the law laid down by Constitutional
Courts. (Para 18, 77 and 86)
C. Constitution of India - Part III -
Fundamental
Rights
-
Scope
-
Constitutional law defines the substance
990 INDIAN LAW REPORTS ALLAHABAD SERIES
of fundamental rights - There is a limit to
human foresight, but the possibilities of
life are limitless. The limits of legislation
are the constraints of human foresight -
The text of the Constitution contains a
conceptual philosophy of fundamental
rights,
and
is
not
an
exhaustive
compendium of all fundamental rights -
The text of the Constitution is constant,
fundamental rights are always evolving.
This is the essence of constitutional law
jurisprudence. (Para 58, 59 and 62)
D. Constitutional law jurisprudence -
Evolution - Duty of the Court - Law is
always
in
motion and
never
at
a
standstill. The Constitution of India is a
forever living organism - Evolution of
constitutional law rights are guided and
controlled
by
the
text
of
the
constitution,
long
settled
judicial
principles
of
interpretation
of
the
constitution, and judicial precedents in
point - The march of law is also assisted
by consensus of values in the comity of
civilized nations. These universal values
are often manifested in international
instruments - Another source of such
values
is
comparative
international
jurisprudence. The felt needs of the
times are also factored in by the courts -
Development of constitutional law and
evolution of fundamental rights happens
on
these
sure
foundations
-
Fundamental rights are thus distilled by
the constitutional courts in discharge of
their constitutional obligations - This is
not judicial activism by courts. It is
judging. (Para 61 and 63)
E. University - Role and obligation -
Universities are the custodians of old
values - Universities are not teaching
shops, nor are they mere examining
bodies. Universities nurture intellect and
develop character of young citizens in a
wholesome manner - Ideals professed
by the University today will be the
values practised by the nation tomorrow
- Lack of empathy of the University
towards pregnant women will create
apathy towards maternity rights among
the students. The University has to show
fidelity to the rule of law by creating an
enabling
environment
to
realize
fundamental rights, foster fundamental
duties
and
promote
constitutional
values. (Para 68, 70 and 72)
Writ petition allowed. (E-1)
List of Cases cited :-

## Text

_Characters 0–39,332 of 86,517. This is a partial read: ask again with offset=39332 for what follows._

1 All. Saumya Tiwari Vs. State of U.P. & Ors.
989
other than the defendant, has been carefully
looked into to infer that the suit property is
situate in Village Chhauchh and that it
adjoins Village Udaipur Maheva. He has
admitted executing the agreement and the
sale deed in respect of land of Village
Chhauchh, to the extent of his 1/3rd share
in Gata No.39 of Village Chhauchh.

32. With so much of careful analysis
of the evidence done and findings recorded,
supported by reasons, to reverse the Trial
Court, it cannot be said that the Lower
Appellate Court has reversed the Trial
Court without meeting the reasons or
considering the evidence dealt with by the
Trial Court. As such, Substantial Question
of Law No. (iii) is answered in the
affirmative, subject to the conclusions
hereinabove.

33. In the result, the appeal fails and
is dismissed.

34. The impugned judgment and
decree passed by the Lower Appellate
Court is affirmed. The plaintiff shall be
entitled to his costs in this Court and in
both the Courts below.

35. Let a decree be drawn up,
accordingly.
----------
(2022)01ILR A989
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ- C No. 20885 of 2021

Saumya Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Udai Narain Singh, Sri Lal Dev

Counsel for the Respondents:
C.S.C., Sri Rohit Pandey, Ms. Shambhavi Tiwari,
Shri Paras Nath Rai(Central Government S.C.)

A. Constitution of India - Article 21 & 42 -
United Nation Declaration on Human
Rights - Article 25(2) - Maternity Benefit
Act, 1961 - Maternity leave - Motherhood
- Right of reproductive choice of a woman
- Dignified environment for motherhood
in pre or post natal period
- It's
significance - Held, motherhood is the
most sublime expression of Nature's
longing for life. Dignity of motherhood is
the highest manifestation of refinement in
the human race - The rights of the
petitioner
to
reproductive
choices,
marriage, procreation and motherhood are
entrenched as fundamental rights by the
law laid down by constitutional courts.
(Para 67 and 73)
B. UP Technical Universities Act, 2000 -
Absence of the provisions in respect of
granting the maternity leave or any
relaxation for expectant and new mothers
-
Validity
challenged
-
Held,
the
respondent University has neglected to
frame Regulations or create appropriate
legal instruments to provide for maternity
benefits to expectant mothers and new
mothers - By failing to frame Regulations
or appropriate legal instruments for grant
of maternity benefits and by declining to
grant such benefits to the petitioner, the
University has violated the fundamental
rights of the petitioner as guaranteed
under Articles 14, 15(3) and 21 of the
Constitution of India and as expounded in
the law laid down by Constitutional
Courts. (Para 18, 77 and 86)
C. Constitution of India - Part III -
Fundamental
Rights
-
Scope
-
Constitutional law defines the substance
990 INDIAN LAW REPORTS ALLAHABAD SERIES
of fundamental rights - There is a limit to
human foresight, but the possibilities of
life are limitless. The limits of legislation
are the constraints of human foresight -
The text of the Constitution contains a
conceptual philosophy of fundamental
rights,
and
is
not
an
exhaustive
compendium of all fundamental rights -
The text of the Constitution is constant,
fundamental rights are always evolving.
This is the essence of constitutional law
jurisprudence. (Para 58, 59 and 62)
D. Constitutional law jurisprudence -
Evolution - Duty of the Court - Law is
always
in
motion and
never
at
a
standstill. The Constitution of India is a
forever living organism - Evolution of
constitutional law rights are guided and
controlled
by
the
text
of
the
constitution,
long
settled
judicial
principles
of
interpretation
of
the
constitution, and judicial precedents in
point - The march of law is also assisted
by consensus of values in the comity of
civilized nations. These universal values
are often manifested in international
instruments - Another source of such
values
is
comparative
international
jurisprudence. The felt needs of the
times are also factored in by the courts -
Development of constitutional law and
evolution of fundamental rights happens
on
these
sure
foundations
-
Fundamental rights are thus distilled by
the constitutional courts in discharge of
their constitutional obligations - This is
not judicial activism by courts. It is
judging. (Para 61 and 63)
E. University - Role and obligation -
Universities are the custodians of old
values - Universities are not teaching
shops, nor are they mere examining
bodies. Universities nurture intellect and
develop character of young citizens in a
wholesome manner - Ideals professed
by the University today will be the
values practised by the nation tomorrow
- Lack of empathy of the University
towards pregnant women will create
apathy towards maternity rights among
the students. The University has to show
fidelity to the rule of law by creating an
enabling
environment
to
realize
fundamental rights, foster fundamental
duties
and
promote
constitutional
values. (Para 68, 70 and 72)
Writ petition allowed. (E-1)
List of Cases cited :-
1. Pratap Singh Vs St. of Jharkhand; 2005 (3)
SCC 551
2. Suchita Srivastava & ors. Vs Chandigarh
Administration; AIR 2010 SC 235
3. R. Rajagopal Vs St. of T.N. & ors.; (1994) 6
SCC 632
4. Govind Vs St. of M.P. & ors.; AIR 1975 SCC
1378
5. Justice K. S. Puttaswamy (Retd.) Vs Union of
India; 2017 (10) SCC 1
6. Bandhua Mukti Morcha Vs U.O.I. & ors.;
(1984) 3 SCC 161
7. Municipal Corporation of Delhi Vs Female
Workers (Muster Roll) & anr.; (2000) 3 SCC 224
8. Mini K.T. Vs Senior Divisional Manager L.I.C.;
2018 (1) KLJ 245
9. Vandana Kandari Vs University of Delhi; 2010
SCC OnLine Delhi 2341
10. Madhu Kishwar & ors. Vs St. of Bihar & ors.;
1996 (5) SCC 125
11. A. Arulin Ajitha Rani Vs The Principal, Film &
Television Institute of Tamil Nadu & ors.; AIR
2009 Mad 7
12. Nithya Vs University of Madras & ors.; 1994
SCC OnLine Mad 339
13. Inspector (Mahila) Ravina Vs U.O.I. & ors.;
2015 SCC OnLine Del 14619
14. Ahalya K.A. Vs Kannur University & ors.;
2016 SCC OnLine Ker 19424
15. Jasmine VsG. Vs Kannur University; 2016
SCC OnLine Ker 3221
16. Ankita Meena Vs University of Delhi; 2018
SCC OnLine Del 9049
1 All. Saumya Tiwari Vs. State of U.P. & Ors.
991
17. Ankita Meena Vs University of Delhi; 2021
SCC OnLine SC 36
18. Dr. Shelly Jetly Vs St. of Pun. & ors.; 2000
SCC OnLine P & H 1061
19. Vishaka Vs St. of Raj.; 1997 (6) SCC 241
20. Rattan Chand Hira Chand Vs Askar Nawaz
Jung; (1991) 3 SCC 67
(Delivered by Hon'ble Ajay Bhanot, J.)

1. The narrative is being structured in
the following framework to facilitate the
discussion:

A. Introduction
B.
Submission
C. Facts
D. Issues for consideration
E.
Statutory perspectives:
a.
University statutes
b.
Analogous provisions
c.
International Instruments
d.
Constitutional provisions
F.
Case laws
G
.
Evolution of Fundamental Rights
legislative lag and executive inertia
H
.
Education & Universities
I.
Conclusions & Directions

A. Introduction

2. The petitioner asserts that she could
not
successfully
complete
B.Tech.
(Electronics and Communication) course in
the period prescribed in the University
Regulations, as she was not granted
maternity leave nor provided maternity
support benefits as an expectant mother and
as a new mother. She claims entitlement to
an additional chance in an enlarged time
period to appear in the two papers of B.
Tech. (Electronics & Communication)
which she could not clear in the regular
academic calender.

B. Submissions

3. Sri Lal Dev Chaurasiya, learned
counsel and Sri Uday Narain Singh, learned
counsel for the petitioner submit that the
petitioner could not appear in the last
chance for qualifying the papers (which she
could not clear in the regular academic
semesters) due to her pregnancy and post
natal recovery issues. The University
authorities did not grant any relaxation and
support to the petitioner during her
pregnancy and immediately after she
delivered a baby child. The pre natal and
post natal conditions imposed limitations
upon the petitioner which precluded her
from
competing
equally
with
other
students.

4. The petitioner has a fundamental
right to various maternity benefits and
reliefs. The action of the University in
denying the petitioner maternity relief,
benefits and support has violated her
fundamental
rights
guaranteed
under
Articles 14, 15 and 21 of the Constitution
of India and has permanently blighted her
academic future.

5. Learned counsels submitted various
authorities of the Constitutional Courts,
Hon'ble Supreme Court & Hon'ble High
Courts,
international
instruments
and
analogous statutes, which define and
regulate maternity rights.

6. Sri Rohit Pandey, learned counsel
assisted by Ms. Shambhavi Tiwari, learned
counsel for the respondents-University
contends that there is no provision for grant
of any maternity benefits or reliefs to
992 INDIAN LAW REPORTS ALLAHABAD SERIES
students
under
the
Regulations
or
Ordinances
of
the
University.
The
University cannot act contrary to its
statutes and regulations framed thereunder.
The University cannot be faulted for not
granting any maternity benefits or support
to the petitioner.

7. Shri Ajal Krishna, learned counsel
for the AICTE has filed an affidavit on
behalf of the regulatory body. Learned
counsel for the AICTE contends that
AICTE does not oppose the creation of
scheme for grant of maternity benefits to
undergraduate students by the Universityrespondent nos. 2 and 3. Further it is for the
University to create the desired Regulations
for which it is adequately empowered.

8. Learned Standing Counsel for the
State of U.P. contends that the creation of
Regulations for grant of maternity benefits
lies within the domain of the University.

9. Shri Paras Nath Rai, learned
Central Government Standing Counsel
submits that the Government of India had
sent a communication to the University
Grants
Commission,
New
Delhi,
to
intimate the action taken in the matter. In
response to the aforesaid communication,
the University Grants Commission, New
Delhi, has passed an order on 14.12.2021,
requesting the Vice Chancellors of all
Universities in the country to frame
appropriate rules/norms with regard to the
grant of maternity leave and any other
facilities/relaxations deemed necessary for
women students pursuing undergraduate
and postgraduate programme. and also
provide necessary relaxation to the women
students.

10. Shri Paras Nath Rai, learned
Central Government Standing Counsel
further contends that the University
Grants Commission, New Delhi, as well
as Union of India do not contest the claim
of the petitioner.

11. Facts of the case are undisputed
and lie in a narrow compass. Pure
questions of law arise for consideration in
this writ petition. With consent of parties,
the matter is being decided finally.

C. Facts

12. The petitioner was admitted to
the
B.Tech.
(Electronics
and
Communication) course in the academic
year 2013-14, in Krishna Institute of
Technology, Kanpur, which is affiliated
to Dr. A. P. J. Abdul Kalam Technical
University,
Uttar
Pradesh,
Lucknow
(hereinafter
referred
to
as
the
'University').

13. The time period for completion
of B.Tech. course in Electronics and
Communication, as provided in the
Ordinances of the University is 7 years.
The relevant Ordinance is extracted
hereunder:

"4.3 The maximum time allowed for a
candidate admitted in 1st/IIIrd semester
(for diploma holders) for completing the
B.Tech course shall be 7 (seven)/5(five)
years respectively, failing which he/she
shall not be allowed to continue for his/her
B.Tech degree."

14. The petitioner cleared all the
semester examinations successfully, but did
not qualify the subjects of Signals and
Systems
in
the
3rd
semester
and
Engineering Mathematics-II in the 2nd
Semester examination in the regular
academic calender.
1 All. Saumya Tiwari Vs. State of U.P. & Ors.
993

15. The petitioner could not complete
the B.Tech (Electronics & Communication)
course by the academic session 2019-2020,
as stipulated in the Ordinances.

16. The exam schedules of the last
two opportunities given to the petitioner for
appearing in the said papers are as follows
is as follows:

I. "Signals and System--3rd semester -
- B.Tech. (Electronics and Communication)
-- December 2019

Engineering Mathematics-II -- 2nd
Semester -- B.Tech. (Electronics and
Communication) -- September 2020"

II. Signal and System (3rd Semester),
February, 2021, Engineering Mathematics
(2nd Semester) July, 2021.

17. The petitioner could not appear
and avail the chances as she was an
expectant mother. The petitioner gave birth
to a child on 22nd December, 2020.
Thereafter she experienced post natal issues
which delayed her recovery.

18. The University refused to give her an
additional chance which catered to her
maternity period and post natal recovery time.
There are no provisions for grant of maternity
leave or any relaxation for expectant and new
mothers in the Uttar Pradesh Technical
Universities
Act,
2000,
Ordinances,
Regulations or Statutes which govern and
regulate functioning of the University.

D. Issues for consideration

19. The issues which arise for
consideration are as under:

I. Whether the right of reproductive
choice of a woman is a fundamental right
if so the implications of the same on
the current controversy?

II. Whether the petitioner can be
denied maternity benefits solely on the
footing that no provision exists in the
statutes or Ordinances or Regulations of
the University to provide such relaxation?

III. What is the nature of maternity
benefits and relief which can be granted
to the petitioner at this stage?

E. Statutory Perspectives

(a) University Statutes

20. Section 29 of the Uttar Pradesh
Technical
Universities
Act,
2000
empowers the Executive Council to frame
new Regulations or amend or repeal
Regulations made by the State in the first
instance. The provision is reproduced
below:

"Section
29.(1)
The
First
Regulations of the University shall be
made by the State Government by
notification.

(2) The Executive Council may,
from time to time, make new or
additional Regulations or may amend or
repeal the Regulations referred to in subsection (1):

Provided that the Executive Council
shall not make, amend or repeal any
Regulation affecting the status, power or
constitution of any authority of the
University until such authority has been
given a reasonable opportunity to express
its opinion in writing on the proposed
changes and any opinion so expressed has
been
considered
by
the
Executive
Council.

(3)
Notwithstanding
anything
contained
in
the
foregoing
sub-
994 INDIAN LAW REPORTS ALLAHABAD SERIES
sections, the State Government may in
order to implement any decision taken
by it in the interest of learning,
teaching or research on the basis of
any suggestion or recommendation of
the University Grants Commission or
All
India
Council
for
Technical
Education or the State or National
Education Policy require the Executive
Council to make new or additional
Regualtions or amend or repeal the
Regulations referred to in sub-section
(1)
or
sub-section
(2)
within
a
specified time and if the Executive
Council fails to comply with such
requirement the State Government may
make new or additional Regulations or
amend
or
repeal
the
Regulations
referred to in sub-section (1) of subsection (2)."

21. The relevant Regulations
which advise special arrangements for
women are extracted below:

"4.12 Subject to the provisions of
the Act and Regulations, the Academic
Council
shall
have
the
following
powers:

(e) to advise special arrangements,
if any for the teaching of female
students and students of weaker section
of society;

(emphasis supplied)

(g) to recommend to the Executive
Council for the Ordinances regarding
examinations of the University;

(h) to prepare Academic calendar.

(p) to perform, in relation to
academic maters, all such duties and do
all such act as may be necessary for the
proper executive by carrying out of the
provisions
of
the
Act
and
the
Regulations."

22. The Academic Council of the
University is further vested with the
plenary following powers:

"4.10 The Council shall exercise all
the powers of the University not
otherwise
provided
by
the
Act,
Regulations, and Ordinances for the
fulfillment
of
the
objects
of
University."

"23. The Academic Council shall
have the power to relax any provision
provided in the ordinance in any
specific matter/situation subject to the
approval of Executive Council of the
University and such decision(s) shall be
reported to the Chancellor of the
University."

(b) Analogous Provisions

23. The Statutes, Ordinances,
Regulations, directions or orders of the
Academic
Council
and
Executive
Council of the University are silent on
grant of maternity leave/support to
expectant and new mothers. In view of
the aforesaid statutory and executive
void, analogous provisions created by
various
universities
and
academic
regulatory bodies in India, as well as
foreign universities which are sensitive
to the rights of expectant mothers'
students' and new parents will support
the discussion.

24. Cambridge University has
taken out a detailed brochure for
students who are expectant parents. The
flow chart which is part of brochure
sums up the roles of various stake
holders as well as responsibilities of
University authorities and the procedure
to be followed is drawn hereinunder:
1 All. Saumya Tiwari Vs. State of U.P. & Ors.
995

"K.Pregnancy/Maternity/Paterni
ty/Adoption Leave flow diagram"

25. Similarly, the University of
Oxford has a comprehensive frame work
for
entitlement
of
parental
leave,
arrangements for return to study, and
supportive measures for pregnant students
and new mothers.

26. The provisions of the maternity
leave under the Oxford University are
reproduced below:

"3. MATERNITY LEAVE

The University's policy has been
harmonised with the Research Councils'
framework
and
clearly
differentiates
maternity leave from suspension of status
for medical or disciplinary reasons. It aims
to ensure consistent and fair treatment of
pregnant students and new mothers and
provides new mothers with the right to a
protected period of leave after the birth.

3.1. Students should notify their
college, department, supervisor or Director
of Graduate Studies of their pregnancy as
soon as possible, and preferably no later
than the 15th week before the expected
week of childbirth. Earlier notification may
be necessary in some cases, for example
where a student works in a potentially
hazardous environment. If this is the case,
the department in question must ensure that
it has published this information and drawn
students' attention to it.

3.2. Risk assessments must be made
where
the
work
environment
(e.g.
laboratory, clinic) might pose a threat to a
pregnant
student.
The
University
Occupational
Health
Service
(UOHS)
recommends that departments seek advice
from their Departmental Safety Officer, the
Area Safety Officer or the Safety Office.
The OUHS can also assist with health
queries
relating
to
pregnancy
and
breastfeeding at work. This may require a
consultation with a doctor or nurse and a
visit
to
the
workplace
(email
enquiries@uohs.ox.ac.uk).

3.3. In conjunction with the student,
the college and department should draw up
a student support plan to be reviewed at
key stages during pregnancy and maternity.
This will help coordinate support and
ensure students' needs are met during
pregnancy, following the birth and on the
student's return to studies.

27. Oxford university contemplates
grant of one full year leave to students who
give birth. The said provision is extracted
as under:

"Undergraduate and postgraduate
taught students

3.5. Students who give birth may
choose to suspend their status before
996 INDIAN LAW REPORTS ALLAHABAD SERIES
recommencing their studies. This will
normally last one full year so that the
student may return to study at the same
point at which they suspended."

28. The student is not left to fend for
herself even after maternity leave. During
the maternity leave the students of the
Oxford University do not snap their
academic links and are required to maintain
them in order to plan all their return to
study. The relevant provisions are as
follows:

"Planning for return to study

3.12. Undergraduate and postgraduate
students on maternity leave should be
encouraged
by
their
college
and/or
department to maintain occasional contact
with their tutor and/or supervisor so that
arrangements may be made for their return
to study. This is likely to involve a limited
amount
of
academic
guidance
and
preparation, as necessary in each case.

3.13. Timely arrangements should be
made to facilitate students' return to study
after maternity leave, including a full
assessment of their requirements in relation
to e.g. training, updating, monitoring and
additional learning support. Typically this
assessment would be carried out by a
college tutor, supervisor or other relevant
academic staff.

3.14. Risk assessments must also be
made where the work environment might
pose a threat to a breastfeeding mother (see
section 3.2 above).

3.15.
If
ill-health
prevents
a
postgraduate student from returning to
work after completing their maximum
period of maternity leave, this should be
treated as sickness absence and further
suspension of status should be sought and
notifications made accordingly (i.e. to the
funding body). If a student is unable to
return to work due to the illness of their
child, they should seek a further suspension
of status, if necessary by application to the
Education Committee.

Undergraduate students

4.1. Some undergraduate students
returning to study after the birth of a child
may find it difficult to pursue their course
at
the
normal
pace.
Under
such
circumstances it may be possible to extend
the duration of their studies, typically by
studying the Final Honour School over one
additional year. Such a proposal requires
endorsement from both the college and the
faculty or department. The student's college
can then apply to Education Committee to
request dispensation from the examination
regulations concerning overstanding for
honours, the timing of multi-University of
Oxford Policy on Student Maternity,
Extended Paternity, Adoption and Shared
Parental Leave part examinations, or if it is
proposed to split Finals over two years.
Approval for the extension of study will
also have to be obtained from Student
Finance England or the relevant regional
body. Applications for remission of the
additional year's university fees will be
considered by the Fees Panel on a case-bycase basis."

29. Similarly the University Grants
Commission, New Delhi, have set up
minimum standards for supportive facilities
to expectant parents under UGC (Minimum
Standards and Procedures for Award of
M.Phil./Ph.D. Degrees) Regulations-2016.
The said Regulations contemplate grant of
maternity leave and other relaxations to
M.Phil/Ph.D.
students
The
relevant
provisions state thus:

"Duration of the Programme:

4.4.......In
addition,
the
women
candidates may be provided Maternity
1 All. Saumya Tiwari Vs. State of U.P. & Ors.
997
Leave/Child Care Leave once in the entire
duration of M.Phil/Ph.D. for up to 240
days."

30. Guidelines for maternity and
paternity leave for fellowship students have
been framed by the All India Council for
Technical Education for Ph.D. Programme,
which are as follows:

"9.0. Terms and Conditions:-

m) Leave:-

(ii)
Candidates
are
eligible
for
maternity/ Paternity leave as per GoI norms
issued from time to time at full rates of
fellowship etc. once during the tenure of
their award. However, maximum duration
of fellowship will not be extended under
any circumstances."

31. All India Council for Technical
Education has also framed maternity leave
guidelines for Post Graduate Scholarship
Schemes in the year 2021:

"1.4 Other Entitlements:

Maternity leave :

Candidates are eligible for maternity/
Paternity leave as per Govt. of India norms
issued from time to time at full rates of
fellowship etc. once during the tenure of
their award. However maximum duration
of fellowship will not be extended in any
circumstances."

32. The Ordinances of the University
of Allahabad also contemplate grant of
maternity leave/child care leave for the
Doctor of Philosophy students. Proviso to
Ordinance 4(a) which provides for the
same is stated below:

"4 (a) Subject to the provisions of this
Ordinance and the Regulations, each
candidate shall, upon admission and
enrolment to the Ph.D. programme, pursue
a course of research of a duration of not
less than twenty-four months in residence
within the area referred to in sub-clause (b)
of clause 1, and shall regularly pay the
prescribed annual and other fees up to the
time he withdraws from his enrolment, or
such enrolment is terminated, or he duly
submits his thesis to the University. The
minimum duration of submitting the thesis
is 36 months from the date of enrolment
and maximum period of submitting the
thesis is 72 months from the date of
enrolment.

Provided that the Women Candidates
and Persons with Disability may be
allowed a relaxation of two years for Ph.D.
in the maximum duration. In addition, the
Women
candidate
may
be
provided
maternity leave/childcare leave once in the
entire duration of Ph.D. for upto 240 days."

 (emphasis supplied)

33. Ordinances of the Allahabad
University which provide for grant of
maternity leave for various other courses
are extracted hereinbelow:

"9 (d). In the case of a married woman
student who is granted maternity leave, in
calculating the total number of lectures
delivered in the College or in the
University, as the case may be, for her
course of study in each academic year, the
number of lectures in each subject
delivered during the period of her maternity
leave shall not be taken into account:

Provided that Post-graduate Degree
students under the Faculty of Medical
Sciences who apply for maternity leave
either in I year or in II year, may be
allowed the maternity leave for a period not
exceeding 3 months in an academic year
998 INDIAN LAW REPORTS ALLAHABAD SERIES
but such students will be required to
complete the duration of the course as
regular
students
as
required
in
the
Ordinance and the students will be
permitted to submit the thesis or to take the
written examination, as the case may be, in
January instead of August that year."

(c) International Instruments

34. International covenants, treaties
and instruments reflect the growth of
international law. Various international
instruments
proclaim
the
dignity
of
motherhood.
These
international
instruments evidence a consensus of shared
human values and universalisation of
human rights in the comity of nations. India
has cemented her international standing by
being a signatory to such forward looking
international instruments. Indian courts
have
faithfully
implemented
the
international obligations through judicial
pronouncements. The strong commitment
of the constitutional courts in India to the
cause of women and motherhood in
consistent with the constitutional scheme
and various international instruments.

35. A scholarly discussion on the
importance
of
discharging
national
obligations under various international
instruments is found in Pratap Singh vs.
State of Jharkhand1.

36. Some relevant international
instruments
and
provisions
of
the
Constitution of India are extracted below:

I. United Nation Universal Declaration
on Human Rights Article 25(2):

"2. Motherhood and childhood
are entitled to special care and assistance.
All children, whether born in or out of
wedlock, shall enjoy the same social
protection."

II.
International
Convention
on
Economic and Cultural Rights.

Need for supportive measures to
expectant mothers both before and after
child birth as provided in Article 10 (2):

"2. Special protection should be
accorded to mothers during a reasonable
period before and after childbirth. During
such period working mothers should be
accorded paid leave or leave with adequate
social security benefits."

III. Convention on elimination of all
forms of discrimination against women:

"Article I

For the purposes of the present
Convention,
the
term
"discrimination
against women" shall mean any distinction,
exclusion or restriction made on the basis
of sex which has the effect or purpose of
impairing or nullifying the recognition,
enjoyment
or
exercise
by
women,
irrespective of their marital status, on a
basis of equality of men and women, of
human rights and fundamental freedoms in
the political, economic, social, cultural,
civil or any other field."

"Article 10

States Parties shall take all appropriate
measures
to
eliminate
discrimination
against women in order to ensure to them
equal rights with men in the field of
education and in particular to ensure, on a
basis of equality of men and women: (a)
The same conditions for career and
vocational guidance, for access to studies
and for the achievement of diplomas in
educational establishments of all categories
in rural as well as in urban areas; this
1 All. Saumya Tiwari Vs. State of U.P. & Ors.
999
equality shall be ensured in pre-school,
general, technical, professional and higher
technical education, as well as in all types
of vocational training;

(b) Access to the same curricula, the
same examinations, teaching staff with
qualifications of the same standard and
school premises and equipment of the same
quality;

(c) The elimination of any stereotyped
concept of the roles of men and women at
all levels and in all forms of education by
encouraging coeducation and other types of
education which will help to achieve this
aim and, in particular, by the revision of
textbooks and school programmes and the
adaptation of teaching methods;

(d ) The same opportunities to benefit
from scholarships and other study grants;

(e) The same opportunities for access
to programmes of continuing education,
including adult and functional literacy
programmes, particulary those aimed at
reducing, at the earliest possible time, any
gap in education existing between men and
women;

(f) The reduction of female student
drop-out rates and the organization of
programmes for girls and women who have
left school prematurely;

(g)
The
same
Opportunities
to
participate actively in sports and physical
education;

(h) Access to specific educational
information to help to ensure the health and
well-being
of
families,
including
information
and
advice
on
family
planning."

(d) Constitutional Provisions:

37. Articles 42 of the Constitution of
India provides for humane conditions of
work and maternity relief.

"42. Provision for just and
humane
conditions
of
work
and
maternity relief.-

The State shall make provision for
securing just and humane conditions of
work and for maternity relief."

38. Other relevant provisions are
Article
41
and
Article
43
of
the
Constitution
of
India.
Article
15(3)
prohibits discrimination on the basis of sex.

F. Case Laws:

39. The Supreme Court in Suchita
Srivastava and others Vs. Chandigarh
Administration2, gave widest amplitude to
a woman's right to make reproductive
choices.
Reproductive
choices
were
construed as inherent to a woman's right to
privacy, dignity and bodily integrity which
are
relatable
to
Article
21
of
the
Constitution of India. The Supreme Court
then declined to put any restriction on such
choices by holding forth:

"22.There is no doubt that a woman's
right to make reproductive choices is also a
dimension
of
`personal
liberty'
as
understood under Article 21 of the
Constitution of India. It is important to
recognise that reproductive choices can be
exercised to procreate as well as to abstain
from procreating. The crucial consideration
is that a woman's right to privacy, dignity
and bodily integrity should be respected.
This means that there should be no
restriction whatsoever on the exercise of
reproductive choices such as a woman's
right to refuse participation in sexual
activity or alternatively the insistence on
use of contraceptive methods. Furthermore,
women are also free to choose birth-control
methods such as undergoing sterilisation
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
procedures.
Taken
to
their
logical
conclusion, reproductive rights include a
woman's entitlement to carry a pregnancy
to its full term, to give birth and to
subsequently raise children...."

40. R. Rajagopal Vs. State of Tamil
Nadu and others3 was the precursor to
Suchita Srivastava (supra), wherein the
right to motherhood, procreation and child
bearing was found to be relatable to the
fundamental right vested by Article 21 of
the Constitution of India. R. Rajagopal
(supra) was cited with approval while
expounding the following proposition in
Govind Vs. State of Madhya Pradesh
and others4:

"9.....Any right to privacy must
encompass
and
protect
the
personal
intimacies of the home, the family,
marriage, motherhood, procreation and
child-rearing. This catalogue approach to
the question is obviously not as instructive
as it does not give analytical picture of the
distinctive characteristics of the right of
privacy. Perhaps, the only suggestion that
can be offered as unifying principle
underlying the concept has been the
assertion that a claimed right must be a
fundamental right implicit in the concept of
ordered liberty...."

41. Justice K. S. Puttaswamy
(Retd.) Vs. Union of India5 following
Suchita Srivastava (supra) firmly and
irrevocably reiterated that human dignity is
a fundamental right under Article 21 of the
Indian
Constitution.
With
customary
eloquence, in K.S. Puttaswamy (supra)
Dr. D. Y. Chandrachud, J., speaking for the
learned
Constitution
Bench
upon
consideration of the judicial precedents in
point distilled the concept of human dignity
and its place in part III of the Constitution:

"Jurisprudence on dignity

"108. Over the last four decades, our
constitutional jurisprudence has recognised
the
inseparable
relationship
between
protection of life and liberty with dignity.
Dignity as a constitutional value finds
expression
in
the
Preamble.
The
constitutional vision seeks the realisation of
justice (social, economic and political);
liberty (of thought, expression, belief, faith
and worship); equality (as a guarantee
against arbitrary treatment of individuals)
and fraternity (which assures a life of
dignity
to
every
individual).
These
constitutional precepts exist in unity to
facilitate a humane and compassionate
society. The individual is the focal point of
the Constitution because it is in the
realisation of individual rights that the
collective well-being of the community is
determined. Human dignity is an integral
part of the Constitution. Reflections of
dignity are found in the guarantee against
arbitrariness (Article 14), the lamps of
freedom (Article 19) and in the right to life
and personal liberty (Article 21).

118. Life is precious intself. But life is
worth living because of the freedoms which
enable each individual to live life as it
should be lived. The best decisions on how
life should be lived are entrusted to the
individual. They are continuously shaped
by the social milieu in which individuals
exist. The duty of the State is to safeguard
the ability to take decisions. "Life" within
the meaning of Article 21 is not confined to
the integrity of the physical body. The right
comprehends one's being in its fullest
sense. That which facilitates the fulfillment
of life is as much within the protection of
the guarantee of life.

119. To live is to live with dignity.
The draftsmen of the Constitution defined
their vision of the society in which
constitutional values would be attained by
1 All. Saumya Tiwari Vs. State of U.P. & Ors.
1001
emphasising,
among
other
freedoms,
liberty and dignity. So fundamental is
dignity that it permeates the core of the
rights guaranteed to the individual by Part
III. Dignity is the core which unites the
fundamental
rights
because
the
fundamental rights seek to achieve for each
individual the dignity of existence. Privacy
with its attendant values assures dignity to
the individual and it is only when life can
be enjoyed with dignity can liberty be of
true
substance.
Privacy
ensures
the
fulfilment of dignity and is a core value
which the protection of life and liberty is
intended to achieve."

42. Maternity relief was embedded in
the minimum requirement for dignified life
in Bandhua Mukti Morcha Vs Union of
India (UOI) and others6:

"10. Moreover, when a complaint is
made on behalf of workmen that they are
held in bondage and are working and living
in miserable conditions without any proper
or adequate shelter over their heads,
without any protection against sun and rain,
without two square meals per day and with
only dirty water from a nullah to drink, it is
difficult
to
appreciate
how
such
a
complaint can be thrown out on the ground
that it is not violative of the fundamental
right of the workmen. It is the fundamental
right of every one in this Country, assured
under the interpretation given to Article 21
by this Court in Francis Mullen's case, to
live with human dignity, free from
exploitation. This right to live with human
dignity, enshrined in Article 21 derives its
life breath from the Directive Principles of
State Policy and particularly clauses (e) and
(f) of Article 39 and Article 41 and 42 and
at the least, therefore, it must include
protection of the health and strength of
workers men and women, and of the
tender age of children against abuse,
opportunities and facilities for children to
develop
in
healthy
manner
and
in
conditions
of
freedom
and
dignity,
educational facilities, just and humane
conditions of work and maternity relief."

 (emphasis supplied)

43. The importance of dignified
environment for motherhood in pre or post
natal period was propounded in the context
of the Maternity Benefit Act 1961 and in
the backdrop of Articles 39, 42 and 43 of
the Constitution of India in Municipal
Corporation
of
Delhi
Vs
Female
Workers (Muster Roll) and Another7:
The
Supreme
Court
in
Municipal
Corporation of Delhi (supra) set its face
against victimization of pregnant women:

"33. A just social order can be
achieved
only
when
inequalities
are
obliterated and everyone is provided what
is legally due. Women who constitute
almost half of the segment of our society
have to be honoured and treated with
dignity at places where they work to earn
their livelihood. Whatever be the nature of
their duties, their avocation and the place
where they work; they must be provided all
the facilities to which they are entitled.