I Adopted a Child Older Than Three Months. Can HR Refuse Maternity Leave?

Answered by Advocate Sharan Jain··Employment & Labour Law

Legal Shorts · 89 words

HR should not refuse statutory adoption maternity benefit solely because your child was older than three months when adopted. On 17 March 2026, the Supreme Court in Hamsaanandini Nanduri v Union of India struck down that age restriction in section 60(4) of the Code on Social Security. The provision is to be read as allowing twelve weeks from the child's handover to a woman who legally adopts a child. Submit the adoption and handover records with the judgment, while checking that your employment falls within the applicable statutory framework.

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HR should not refuse statutory adoption maternity benefit solely because your child was older than three months when adopted. On 17 March 2026, the Supreme Court in Hamsaanandini Nanduri v Union of India struck down that age restriction in section 60(4) of the Code on Social Security. The provision is to be read as allowing twelve weeks from the child's handover to a woman who legally adopts a child. Submit the adoption and handover records with the judgment, while checking that your employment falls within the applicable statutory framework.

What exactly changed in March 2026?

The Court held that the distinction between mothers adopting children below three months and those adopting older children lacked the required constitutional justification. Paragraphs 167 and 168 contain the operative conclusion and the revised reading of section 60(4). An HR handbook reproducing the old age limit therefore does not answer a current request.

The judgment addresses the age condition, not an unlimited period of paid leave. The statutory period in its operative reading remains twelve weeks, starting from handover. Do not substitute the date of an internal approval, the date payroll processed your request or an assumed future start date without examining the actual chronology.

Which documents should I give HR?

Provide the record establishing the legal adoption and the record showing when the child was handed over. Depending on the lawful adoption route, those documents may differ. If handover preceded a later formal order, explain both dates rather than altering one to make the application simpler. Ask for advice where the documents and the actual sequence create uncertainty.

Add your employment details, requested period and HR's refusal or policy extract. Share only the child-related information necessary to establish the entitlement through the appropriate confidential channel. A colleague's adoption leave approval may be useful context, but your own statutory basis and dates are the central evidence.

What should my revised request say?

A practical wording is: "My application was declined because the child was older than three months. Please reconsider that reason in light of paragraphs 167 and 168 of Hamsaanandini Nanduri v Union of India, decided on 17 March 2026. I attach the legal adoption and handover records and request the applicable twelve-week maternity benefit from the handover date." State the dates and identify any leave already taken.

Ask HR to give a written decision identifying any remaining ground for refusal. If it accepts the legal position but disputes coverage or the calculation, have that issue explained separately. A response saying only that the company portal does not accept an older child's date of birth is an administrative problem that needs correction, not a reasoned legal assessment.

Does every childcare arrangement qualify?

The operative provision concerns a woman who legally adopts a child. Do not assume that informal care, guardianship or foster placement automatically establishes a legal adoption. Obtain advice on the status of your documents before presenting a particular arrangement as falling within section 60(4).

The judgment also does not create a universal twelve-week paid paternity entitlement for every private employee. Paragraph 169 urges the Union to provide for paternity leave. An employer's own parental-leave policy may offer benefits beyond the statute, but that is a separate source of entitlement. Read any more generous policy on its terms.

What if I already used annual leave or unpaid leave?

Preserve the original request, refusal, leave ledger and wage statements. Ask the employer to review the treatment of the identified period rather than requesting an unexplained second block of leave. Whether an earlier period should be reclassified or a deduction repaid depends on its dates, the applicable framework and any previous decision.

Seek prompt employment-law advice if HR maintains the age-based refusal or the disputed period is already passing. Give the adviser the actual order and complete chronology, including earlier correspondence. The immediate decision is whether the stated age restriction can stand and how the affected leave and pay records should be corrected. Do not assume that an old website answer or a still-unamended handbook overrides the Supreme Court's operative ruling.

Read the related employment guide for the wider issue. The employment and labour practice page identifies the relevant practice area.

Sources

The law this answer relies on, so you can read it yourself.

  1. 1.Hamsaanandini Nanduri v Union of India, Supreme Court, 17 March 2026, 2026 INSC 246: Paragraphs 166-168; Paragraph 4; Paragraph 169. Read the source

The short answer's sources were checked on 1 October 2026. Statutes and judgments can change, so check the current position before you act on anything here.

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Answered by

Advocate Sharan Jain

Advocate based in Bangalore, practising before the Karnataka High Court and District, Sessions, Consumer and Family courts. Answers public legal questions to make Indian law more accessible.

This answer is general information on Indian law as at October 1, 2026, published for public education. It is not legal advice, it does not take account of your facts, and reading it does not create an advocate-client relationship. Law changes and every case turns on its own circumstances. Please consult a qualified advocate about your own matter.

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