The main legal principle established in the judgment is the entitlement of commissioning mothers to maternity leave under existing rules, despite the absence of specific provisions for surrogacy. The judgment emphasizes the need for a beneficial interpretation of maternity leave provisions to ensure social justice to women and protect the dignity of motherhood.

ORDER :

BY THE COURT:

1. “Mother is she who can take place of all others, but whose place no one else can take.”

2. “The bond between mother and her child is special one. It remains unchanged by time or distance. It is the purest love-unconditional and true. It is understanding of any situation and forgiving any kind of mistakes….”

3. Motherhood is the mother of all civilizations. Family as a social institution is considered as the backbone of the society. No civilization could have passed without recognizing the power of mother and often figuratively projected her as Goddess. A child born to a family sees the world first through the eyes of his/her mother and develops his/her skills through the vision of the family.

4. The issues involved in this petition is “Whether any distinction can be made by the State Government to a natural mother, a biological mother and a mother who has begotten a child by surrogacy procedure? Whether a surrogate mother/commissioning mother can be deprived to get maternity leave? Whether denying maternity leave to surrogate mother amounts to violation of right to life under Article 21 of the Constitution of India and Whether the right to life includes the right to motherhood and also the right of every child to full development?” It is in this background, the issue involved in this petition is required to be considered.

5. The factual matrix of the case is that after following the process of surrogacy, the petitioner had begotten twins and she applied before the State authorities for getting maternity leave for taking care of the newly born babies. But the State refused to grant the same to the petitioner vide impugned order dated 23.06.2020 indicating therein that there is no provision under the Rajasthan Service Rules, 1951 (for short “the Rules of 1951”) for grant of maternity leave to the mother, who got children through the process of surrogacy.

6. Feeling aggrieved by the impugned order dated 23.06.2020, the petitioner has approached this Court by way filing this petition under Article 226 of the Constitution of India with the following prayer:

“1. Direct the respondents to grant/sanction maternity leave to the petitioner for 180 days commencing from 01.02.2020.

2. Direct the respondents to pay leave salary equal to pay drawn by the petitioner immediately before proceeding on maternity leave as per rule 103 of the RSR.

3. Direct the respondents to not to debit the maternity leave availed by the petitioner from her leave account and a separate entry in this regard shall be made in the service book of the petitioner.

4. Any other relief, which the Hon’ble court may deem fit in the favour of the humble petitioner, may also be given to the humble petitioner.”

7. Learned counsel for the petitioner submits that the marriage of the petitioner was solemnized on 25.08.2007. Since the couple was not having any issue from the wedlock, hence the petitioner along with her husband decided to have children through the process of surrogacy. After availing that process, twins namely Chinmay Datwani and Charmy Datwani were born on 31.01.2020. Counsel submits that after birth of the children the petitioner applied for grant of maternity leave of 180 days for taking care of the children w.e.f. 01.02.2020. Counsel submits that the application was submitted by the petitioner before the authorities on 06.03.2020 but the respondents have rejected the application vide impugned order dated 23.06.2020 indicating therein that under Rajasthan Service Rules, 1958 there is no provision of granting maternity leave to the couple having children through surrogacy. Counsel submits that the Rules were enacted by the Legislature in the year 1951 and at the relevant time there was no such procedure adopted by the parents but with passage of time & by development of medical science, the parents have an alternative method of having children through surrogacy, if they are not having issue from the wedlock. Counsel submits that under these circum