Maternity Benefit Act 1961

30 Section

12.12.1961

Maternity Benefit Act 1961

Section 1. Short title, extent and commencement.

Section 2. Application of Act.

Section 3. Definitions.

Section 4. Employment of, or work by, women prohibited during certain periods.

Section 5. Right to payment of maternity benefit.

Section 5A. Continuance of payment of maternity benefit in certain cases.

Section 5B. Payment of maternity benefit in certain cases.

Section 6. Notice of claim for maternity benefit and payment thereof.

Section 7. Payment of maternity benefit in case of death of a woman.

Section 8. Payment of medical bonus.

Section 9. Leave for miscarriage, etc.

Section 9A. Leave with wages for tubectomy operation.

Section 10. Leave for illness arising out of pregnancy, delivery, premature birth of child, miscarriage, medical termination of pregnancy or tubectomy operation.

Section 11. Nursing breaks.

Section 11A. Creche facility.

Section 12. Dismissal during absence of pregnancy.

Section 13. No deduction of wages in certain cases.

Section 14. Appointment of Inspectors.

Section 15. Powers and duties of Inspectors.

Section 16. Inspectors to be public servants.

Section 17. Power of Inspector to direct payments to be made.

Section 18. Forfeiture of maternity benefits.

Section 19. Abstract of Act and rules thereunder to be exhibited.

Section 20. Registers, etc.

Section 21. Penalty for contravention of Act by employer.

Section 22. Penalty for obstructing Inspector.

Section 23. Cognizance of offences.

Section 24. Protection of action taken in good faith.

Section 25. Power of Central Government to give directions.

Section 26. Power to exempt establishments.

Section 27. Effect of laws and agreements inconsistent with this Act.

Section 28. Power to make rules.

Section 29. Amendment of Act 69 of 1951.

Section 30. Repeal.

The Act regulates employment of women in certain establishments for a certain period before and after child birth and provides for maternity and other benefits. The Act applies to mines, factories, circus, industry, plantation and shops and establishments employing ten or more persons, except employees covered under the Employees State Insurance act, 1948. It can be extended to other establishments by the state governments. There is no wage limit for coverage under the Act. The Central Government is Appropriate Government in respect of the Circus Industry and Mines.

MATERNITY BENEFIT ACT, 1961 (No. 53 of 1961) 

[12th. December, 1961] 

An Act to regulate the employment of women in certain establishment for certain period before and after child-birth and to provide for maternity benefit and certain other benefits. Be it enacted by Parliament in the Twelfth Year of the Republic of India as follows: - 

1. Short title, extend and commencement. -- 

(1) This Act may be called the Maternity Benefit Act, 1961. 

(2) It extends to the whole of India 2[* * *] 

(3) It shall come into force on such date as may be notified in this behalf in the Official Gazette, -- 

3[(a) in relation to mines and to any other establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances, by the Central Government, and] 

(b) in relation to other establishments in s State, by the State Government. NOTES. – This Act came into force in relation to mines in the territories to which it extends on the 1st. November 1963 – Vide S.O. No. 2920, dated 5th. October, 1963, published in the Gazette of India, Part II, Sec. 3 (ii), dated 12th. October, 1963. This Act came into force in the whole of Uttar Pradesh with effect from 22nd. February 1974, vide notification No. 512 (V)-2/36-5-13 (V) 72, dated 22nd. February 1974. 

2. Application of Act. -- 

(1) It applies in the first instance, to every establishment being a factory, mine or plantation 4[including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances]: Provided that the State Government may, with the approval of the Central Government, after giving not less than two months’ notice of its intention of so doing, by notification 1 Received the assent of the President on the 12th. December, 1961 and published in the Gazette of India, Extraordinary, dated 13th. December 1961. For Statement of Objects and Reasons see Gazette of India, Extraordinary, Part II, dated 6th. December 1960. 2 Words “except the State of Jammu and Kashmir” omitted by Act 51 of 1970, Sec. 2 and Sch. 3 Subs. by Act 52 of 1973, Sec. 2, w.e.f. 1-3-1975 – Vide notification No. S.O. 113A (E), dated 27-2- 1975. 4 Subs. by Aci 52 of 1973, S.3. In the official on In the official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise. 

(2) 5[Save as otherwise provided in 6[sections 5A and 5B] nothing contained in this Act] shall apply to any factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948 (84 of 1948), apply for the time being. 

3. Definitions. -- In this Act, unless the context otherwise requires, -- 

(a) “appropriate Government” means in relation to an establishment being a mine 7[or an establishment where persons are employed for the exhibition of equestrian, acrobatic and other performances], the Central Government and in relation to any other establishment, the State Government; 

(b) “child” includes a still-born child; 

(c) “delivery” means the birth of a child; 

(d) “employer” means – 

(i) in relation to an establishment which is under the control of the Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department; 

(ii) in relation to an establishment which is under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority; 

(iii) in any other case, the person who are the authority which has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person; 

[8(e) “establishment” means – 

(i) a factory; 

(ii) a mine; 

(iii) a plantation; 

(iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatics and other performances; or 5 Subs. by Aci 21 of 1972, S.2. 6 Subs. by Act 53 of 1976, sec. 2, for “section 5A”. Act 53 of 1976 came into force w.e.f. 1-5-1976 – Vide notification No. S.O. 337 (E), dated 30-4-1976. 7 Added by Act 52 of 1973, S. 4. 8 Subs. by Act 52 of 1973, S. 4. (v) an establishment to which the provisions of this Act have been declared under sub-section (4) of section 2 to be applicable;] 

(f) “factory” means a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948); (g) “Inspector” means an Inspector appointed under section 14; (h) “maternity benefit” means the payment refereed to in sub-section (1) of section 5; 

(i) “mine” means a mine as defined in clause (j) of section 2 of the Mines Act, 1952 (35 of 1952) 

(j) “miscarriage” means expulsion of the contents of a pregnant uterus at ay period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage the causing of which ins punishable under the Indian Penal Code (45 of 1860); 

(k) “plantation” means a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951); 

(l) “prescribed” means prescribed by rules made under this Act; 

(m) “State Government” in relation to a Union territory, means the Administrator thereof; 

(n) “wages” means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes – 

(1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to; 

(2) incentive bonus; and 

(3) the money value of the concessional supply of foodgrains and other articles, but does not include – 

(i) any bonus other than incentive bonus; 

(ii) overtime earnings and any deduction or payment made on account of fines; 

(iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and 

(iv) any gratuity payable on the termination of service; 

(o) “woman” means a woman employed, whether directly or through any agency, for wages in any establishment. NOTES. – Sec 3 (f). – A factory does not include a mine subject to the operation of the Mines Act, 152, or a railway running-shed. Sec. 3 (j) – The definition of miscarriage is similar to the definition as given in Sec. 2 (14-B) of the Employees’ State Insurance Act, 1948. 

4. Employment of, or work by, women prohibited during certain period. -- (1) No employer shall knowingly employ a woman in any establishment during the six weeks (now eight weeks) immediately following the day of her delivery or her miscarriage. 

(2) No woman shall work in any establishment during the six weeks (now eight weeks) immediately following the day of her delivery of her miscarriage. 

(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health. 

(4) The period referred to in sub-section (3) shall be – 

(a) at the period of one month immediately preceding the period of six weeks, before the date of her expected delivery; 

(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6. 

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 immediately preceding and including the day of her delivery and for the six weeks immediately following that day. 

Explanation. – For the purpose of this sub-section, the average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, or one rupee a day, whichever is higher. 

(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 one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery: Provided that the qualifying period of one hundred and sixty 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. 

Explanation: - For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid-off during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account. 

(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks, that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day: Provided 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 further that where a woman, having been delivered of a child dies during her delivery or during the period of six weeks immediately following the date of her delivery, leaving behind in either case the child, the employer shall be liable for the maternity benefit for the entire period of six weeks immediately following the day of her delivery but if the child also dies during the said period, then for the days up to and including the day of the death of the child. 

NOTES. – The term “week” means a cycle of seven days including Sundays; B. Shah V. Presiding Officer, A.I.R. 1978 S. C. 12. 9[

5-A. Continuance of payment of maternity benefit in certain cases. -- Every woman entitled to the payment of maternity benefit under this Act shall, notwithstanding the application of the Employees’ State Insurance Act, 1948 (34 of 1948), to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under Sec. 50 of that Act.] 10

5-B. Payment of maternity benefit in certain cases. -- Every woman – (a) who is employed in a factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948 (34 of 1948), apply; (b) whose wages (excluding remuneration for overtime work) for a month exceed the amount specified in sub-clause (b) of clause (a) of section 2 of that Act; and (c) who fulfils the conditions specified in sub-section (2) of section 5, shall be entitled to the payment of maternity benefit under this Act]. 

6. Notice of claim for maternity benefit and payment thereof. -- 

(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit. 

(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery. 9 Ins. By Act 21 of 1972, S. 3. 10 Ins. By Act 53 of 1976, S. 3. 

(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery. 

(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery. 

(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on the production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child. 

(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order. 

NOTES. – See also Sec. 50 of the Employees’ State Insurance Act, 1948, for conditions under which a woman becomes qualified to claim maternity benefit under this Act. 

7. Payment or maternity benefit in case of death of a woman. -- If a woman entitled to maternity benefit or any other amount under this Act, dies before receiving such maternity benefit or amount, or where the employer is liable for maternity benefit under the second proviso to sub-section (3) of section 5, the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 6 and in case there is no such nominee, to her legal representative. 

8. Payment of medical bonus. -- Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of twenty-five rupees, if no pre-natal confinement and post-natal care is provided for by the employer free of charge. 

9. Leave for miscarriage. -- In case of miscarriage, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of six weeks immediately following the day of her miscarriage. 

10. Leave for illness arising out of pregnancy, delivery, premature birth of child, or miscarriage. -- A woman suffering illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall, on production of such proof as may be prescribed, be entitled in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month. 

11. Nursing breaks. -- Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months. 

12. Dismissal during absence or pregnancy. -- 

(1) Where a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service. 

(2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge of dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus: Provided that where the dismissal is for any prescribed gross misconduct the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both. 

(b) Any woman deprived of maternity benefit or medical bonus or both may, within sixty days from the date on which the order of such deprivation is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefits or medical bonus or both, shall be final. 

(c) Nothing contained in this sub-section shall affect the provisions contained in subsection (1). 

13. No deduction of wages in certain cases. -- No deduction from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of this Act shall be made by reason only of – 

(a) the nature of work assigned to her by virtue of the provisions contained in subsection (3) of section 4 : or 

(b) breaks for nursing the child allowed to her under the provisions of section 11. 

14. Appointment of Inspectors. – The appropriate Government may, by notification in the Official Gazette, appoint such officers as it thinks fit to by Inspectors for the purposes of this Act and may define the local limits of the jurisdiction within which they shall exercise their function under this Act. 

15. Powers and duties of Inspectors. -- An Inspector may, subject to such restrictions or conditions as may be prescribed, exercise all or any of the following powers, namely: - 

(a) enter at all reasonable times with such assistants, if any, being persons in the service of the Government or any local or other public authority as he thinks fit, any premises or place where women are employed or work is given to them in an establishment, for the purposes or examining any registers, records and notices required to be kept or exhibited by or under this Act and require their production for inspection; 

(b) examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment: Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself: 

(c) require the employer to give information regarding the names and addresses of women employed, payments made to them, and applications or notices received form them under this Act; and 

(d) take copies of any registers and records or notices or any portions thereof. 

16. Inspectors to be public servants. -- Every Inspector appointed under this Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860). 

17. Power of Inspector to direct payments to be made. -- 

(1) Any woman claiming that maternity benefit or any other amount to which she is entitled under this Act and any person claiming that payment due under section 7 has been improperly withheld, may make a complaint to the inspector. 

(2) The Inspector may, of his own motion or on receipt of a complaint referred to in subsection (1), make an enquiry or cause an inquiry to be made and if satisfied that payment has been wrongfully withheld, may direct the payment to be made in accordance with his orders. 

(3) Any person aggrieved by the decision of the Inspector under sub-section (2) may, within thirty days from the date on which such decision is communicated to such person, appeal to the prescribed authority. 

(4) The decision of the prescribed authority where an appeal has been preferred to it under sub-section (3) or of the Inspector where no such appeal has been preferred, shall be final. 

(5) Any amount payable under these sections shall be recoverable as an arrear of lane revenue. 

18. Forfeiture of maternity benefit. -- If a woman works in any establishment after she has been permitted by her employer to absent herself under the provisions of section 6 for any period during such authorized absence, he shall forfeit her claim to the maternity benefit for such period. 

19. Abstracts of Act and rules thereunder to be exhibited. -- An abstract of the provisions of this Act and the rules made thereunder in the language or languages of the locality shall be exhibited I a conspicuous place by the employer in every part of the establishment in which women are employed. 

20. Registers, etc. – Every employer shall prepare and maintain such registers, records and muster-rolls and in such manner as may be prescribed. 

21. Penalty for contravention of Act by employers. -- If any employer contravenes the provisions of this Act or the rules made thereunder he shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees, or with both; and where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall in addition recover such maternity benefit or amount as if it were a fine, and pay the same to the person entitled thereto. 

22. Penalty for obstructing Inspector. -- Whoever fails to produce on demand by the Inspector any register or document in his custody kept in pursuance of this Act or the rules made thereunder or conceals or prevents any person from appearing before or being examined by an Inspector, shall be punishable with imprisonment which may extend to three months, or with fine which may extend to five hundred rupees or with both. 

23. Cognizance of offences. -- 

(1) No prosecution for an offence punishable under this Act or any rule made thereunder shall be instituted after the expiry of one year from the date on which the offence is alleged to have been committed and no such prosecution shall be instituted except by, or with the previous sanction of, the Inspector; Provided that in computing the period of one year aforesaid, the time, if any, taken for the purpose of obtaining such previous sanction shall be excluded. 

(2) No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any such offence. 

NOTES. – Sections 21 to 23 deal with penalties under the Act and procedure to try offences committed under this Act. 

24. Protection of action taken in good faith. -- No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or of any rule or order made thereunder. 

25. Power of Central Government to give directions. -- The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution the provisions of this Act and the State Government shall comply with such directions. 

26. Power to exempt establishments. -- If the appropriate Government is satisfied that having regard to an establishment or a class of establishments providing for the grant of benefit which are not less favorable than those provided in this Act, it is necessary so to do, it may, by notification in the Official Gazette, exempt subject to such conditions and restrictions, if any, as may be specified in the notifications, the establishment or class of establishments from the operation of all or any of the provisions of this Act or of any rule made thereunder. 

27. Effect of laws and agreements inconsistent with this Act. -- 

(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act: Provided that where under any such award, agreement, contract of service or otherwise, a woman is entitled to benefits in respect of any matter which are more favorable to her than those to which she would be entitled under this Act, the woman shall continue to be entitled to the more favorable benefits in respect of that matter, notwithstanding that she is entitled to receive benefit in respect of other matters under this Act. 

(2) Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect of any matter, which are more favorable to her than those to which she would be entitled under this Act. 

28. Power to make rules. -- 

(1) The appropriate Government may, subject to the condition of previous publication and by notification in the Official Gazette, make rules for carrying out the purposes of this Act. 

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for – 

(a) the preparation and maintenance of registers, records and muster rolls; 

(b) the exercise of powers (including the inspection of establishments) and the performance of duties by Inspectors for the purposes of this Act; 

(c) the method of payment of maternity benefit and other benefits under this Act in so far as provision has not been made therefore in this Act; 

(d) the form of notices under section 6: 

(e) the nature of proof required under the provisions of this Act; 

(f) the duration of nursing breaks referred to in section 11; 

(g) acts which may constitute gross misconduct for purposes of section 12; 

(h) the authority to which an appeal under clause (b) of sub-section (2) of section 12 shall lie, the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof; 

(i) the authority to which an appeal shall lie against the decision of the Inspector under section 17; the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof; 

(j) the form and manner in which complaints be made to Inspectors under subsection (1) of section 17 and the procedure to be followed by them when making inquiries or causing inquiries to be made under sub-section (2) of that section; 

(k) any other matter which is to be, or may be, prescribed. (3) Every rule made by the Central Government under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session 11[or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session, aforesaid,] both Houses agree in making any modification in the rule or both houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 

29. Amendment of Act 69 of 1951. -- In section 32 of Plantation Labour Act, 1951, -- (a) in sub-section (1), the letter and brackets “(a)” before the words “in the case of sickness,” the word “and” after the words “sickness allowance”, and clause (b) shall be omitted. (b) In sub-section (2), the words “or maternity” shall be omitted. 

30. Repeal. -- On the application of this Act. – (i) to mines, the Mines Maternity Benefit Act, 1941 (19 of 1941); and Maternity Benefit Act, 1929 (Bom. Act VII of 1929), as in force in that territory, shall stand repealed. 11 Subs. by Act 52 of 1973, S. 5.

Introduction

Comprising half the population, women make up a crucial chunk of the workforce. Employment demands the need to balance work and child-bearing and child-rearing responsibilities. The Constitutional framework endeavours to provide equality to women in all walks of life. In furtherance of this pursuit, the Maternity Benefit Act, going along the lines of the International Labor Organisation, aims to grant maternity protection to women. The Maternity Benefit Act of 1961 and the very recent amendment of 2017 ensure active participation in economic activities post maternity. The gradual change that society has undergone demands that women have not become vulnerable during the fragile phase of pregnancy. Hence, the Maternity Benefit Act ensures that a woman has equal protection to employment during pregnancy so that it does not impact women, their productivity or economic growth.

Scope and need for the legislation: National and International perspective

The fundamental aim of the Act is to remove the impediments that women encounter when they entail on the journey of motherhood. The Act has the primary aim of enabling women to combine work and not compromise on their choice of having a child. Tracing history, Germany led the race by having maternity allowance by the end of the 19th century. International Labor Organization followed the concept and came up with the Maternity Protection Convention. In the Indian scenario, the need to have a maternity benefit legislation was recognized by N.M Joshi as back as 1929, when he introduced the Maternity Benefit Bill (No. 31 of 1924) in the Central Legislature. Before this, Women’s Association India had already led a quest demanding maternity rights in the Jamshedpur steel industry in 1920. Post that, the Central Government showed efforts by introducing the Mines Maternity Benefit Act 1941, Employees’ State Insurance Act 1948, and Plantations Labour Act 1951, which finally paved way for the Maternity Benefit Act of 1961, which was enacted by the Parliament with the sole object to regulate the employment of women for a certain period before and after child-birth. The reasons that compelled the codification could be seen in the discrepancies with respect to the different periods of maternity leave as well as the qualifying period of service of eligibility for maternity benefit. Thereby, fulfilling a broader object of protecting dignity attached with motherhood by providing full and healthy maintenance of woman and her child during the period when she is not working.

In the International Arena

The United Kingdom grants 52 weeks of maternity leave with 6 weeks paid at 90% of the average weekly earnings.

In the case of Australia, 52 weeks of paid maternity leave is provided.

In South Africa, the condition is comparably unsatisfactory with 17 weeks paid with 60 per cent of the wages which is shared by the employer, employee and the government.

In Singapore, the conditions are impressive with 16 weeks of full payment that is shared by the employer and the government via public funds.

2017 Amendment

The 2017 Amendment was brought in after the 259th Law Commission Report which states as follows:

“The Maternity Benefit Act be amended in accordance with the forward-looking provisions in the CCS Rules, whereby maternity benefits should be increased from twelve weeks to 180 days. The provision of maternity benefits should be made obligatory on the State and not left to the will of the employers and should cover all women, including women working in the unorganized sector. It is suggested that the government formulates policy or guidelines laying down minimum specifications of paid maternity leave to women employed in the private sector.”

The Amendment Bill was introduced in the Rajya Sabha by the Minister for Labour and Employment, Mr Bandaru Dattatreya. The Bill was introduced after the 44th Session of the Indian Labour Conference (ILC) recommended enhancement of maternity leave period, which was reiterated in the 45th and 46th Session. This was coupled with the suggestions of the Ministry of Women and Child Development that aimed at improving the ambit of maternity benefits for women. As per World Health Organization Recommendations, there was a need to increase the duration of Maternity Leave to protect the mother’s and child’s health, especially since a child needs to be breastfed for the first 24 months to improve the survival rate.

Analysis of important provisions of the legislation

(i) Duration of maternity leave [S. 5(3)]

The Act states that every woman shall be entitled to a maternity benefit of 12 weeks. The Act endeavours to increase the same to 26 weeks. Furthermore, as per the prior provisions, a woman could not avail of the said benefit before 6 weeks from the date of expected delivery. The Amendment changes this to a period of 8 weeks. In the case of a woman having two or more children, the maternity benefit will continue to be 12 weeks, which cannot be availed before six weeks from the date of the expected delivery.

(ii) Maternity leave for adoptive and commissioning mothers: [S.5(4)]

The Amendment furthermore grants 12 weeks of maternity leave to, a woman who legally adopts a child below three months of age; and a commissioning mother who has been defined as a biological mother who uses her egg to create an embryo implanted in another woman. The 12 weeks of maternity benefit will be calculated from the date the child is handed over to the adoptive or commissioning mother.

(iii) Option to work from home: [S.5 (5)]

The Amendment brings in a novel provision that permits women to work from home, depending upon the nature of the work that is to be carried out by them. By a mutual agreement, the work can be decided upon by the employer and the employee. This option does not get exhausted after delivery but can continue even post-delivery for a period mutually decided by the employer and the woman.

(iv) Crèche Facilities: [S.11A-(1)]

The Amendment brings in a fresh provision of having creche facilities within a stipulated distance. The mother shall be allowed 4 visits to the creche in a day, including her time for rest.

(v) Informing women employees of the right to maternity leave: [S.11-A (2)]

The provision calls for spreading awareness amongst women employees at the time of their employment vis-à-vis maternity benefits available to them.

(vi) Leave for Miscarriage [S.9]

After a miscarriage or medical termination of pregnancy, a woman shall be given a 6 weeks maternity benefit on the production of medical documents. (45 days)

(vii) Leave with wages for tubectomy operation [S.9-A]

After providing necessary medical documents, a woman shall get 2 weeks of maternity benefit immediately after the operation. 

Female -14/1

Male - 6/7

(viii) Prohibition of dismissal during absence or pregnancy [S.12]

It is unlawful to dismiss or discharge a woman employee who is absent from work in accordance with provisions of this Act. If the employer has dismissed or discharged the employee, he will have to pay her maternity benefit or bonus as specified in the Act. If this is not complied with, then the aggrieved woman can appeal to the authorities.

(ix) Appointment of inspectors [S.14]

For administration and enforcement of the Act, the government has appointed Inspectors. According to S.16, these Inspectors shall be Public Servants as defined in S.21 of the Indian Penal Code.

(x) Power of Inspector to direct payments to be made [S.17]

An Inspector can make an enquiry on his own or by complaint given by the aggrieved employee. If after investigation the complaint is found to be correct then the Inspector can direct the employer to pay the employee. If the employee is not satisfied with the decision of the Inspector then an appeal can be made to the prescribed authority.

(xi) Penalty for contravention of Act by employer [S.21]

If the employer fails to pay the amount, then he shall be punished in accordance with provisions of the Act. There shall be imprisonment for not less than 3 months and extendable up to 1 year, with a fine, not less than Rs.2000 which may extend up to Rs.5000. The aforementioned provisions are an exhibit of a progressive approach of the legislature regarding women’s rights and the need to provide women ample opportunity and space for growth which they otherwise were deprived of before this particular amendment. The legislature has adhered to the ethos of a welfare state by churning out this amendment.

Views of the National Commission on labour I & II

(i) Commission on labour 1

The first Labour Commission of 1969 apart from doing the spadework of laying down the basic labour safety and security code, elaborated on the need to have welfare for the working class. The provision for having creche was spoken of. The fact that there was an embargo of having a minimum of 50 women workers ? (30 women) to have a creche facility was to be brought down effectively. Employers are to provide incentives to promote family planning and engage with the government to effectively render services for the well-being of their employees. Apart from this, vis-à-vis maternity benefits, a scheme of the central fund was to be adopted to materialize the goals of the Maternity Benefit Act, 1961.

(ii) Commission on labour 2

The Second Labour Commission, constituted in the year 2002, apart from calling for a broad classification of labour laws, emphasised the need for greater social security for the workers, including those in the unorganised sector. It moreover delineated from the sexist notion of ‘workman’ and changed it to ‘worker’ acknowledging the female workforce and the need to confer rights upon them. It also focused on prohibiting unfair dismissal on arbitrary grounds. Recognising the need for the safety of women and their children, the provision for having a creche was outlined in the report.

Suggestions/Recommendations

The Amendment of 2017 has brought about any necessary changes to acclimatize to the changing global conditions about this particular issue. Even though this amendment has gone a long way in bringing about positive changes in its sphere, certain lapses can still be seen in Indian jurisprudence. The pressing issues that need to be addressed through this legislation are suggested as follows:

Making the provisions gender neutral

In today’s world where gender equality is at the forefront of every aspect, India’s legislative provisions must address these issues. Although the amendment of 2017 has addressed key important issues, it has failed to take into consideration the importance of gender neutrality. The Act has focused on the fact that a child needs its mother during the formative years but has not taken into consideration the need of a father during this time. Hence it is of utmost importance that the Act takes into consideration Paternity Benefits and Leave as well.

Dividing the payment of maternity benefits

In India, the employer has to pay maternity benefits to the employee. After the amendment, the duration of leave has changed from 12 weeks to 26 weeks, which has increased the burden on the employer significantly. This could lead to discouragement from hiring women employees. In Singapore, a 16-week leave is given but the payment of benefits is divided equally between the employer and the state via public funds. India should also implement a similar policy so that the employer does not get discouraged from hiring women employees.

Conclusion

The amendment of the Maternity Benefits Act has very beneficial provisions for working women. But, the drafters of the amendment failed to consider the shortcomings of the Act. These inadequacies have been discussed in the suggestions. The amendment has brought the Indian legislation at par with the International legislations and taken the recommendations given by the 259th Law Commission report and the 2nd Commission on Labour, but they should study the provisions in various countries as well. Like in Singapore, the state shares the burden with the employer for paying maternity benefits. As the full burden is now on the employer, they might be hesitant to hire more women employees. The Amendment is also not fully future-ready. This is because, although on one hand, it added provisions to enable employees to work from home, it did not consider the factor of paternity benefits.

The Maternity Benefit Act, 1961 is a legislation that protects the employment of women at the time of her maternity. It entitles women employees of ‘maternity benefit’ which is fully paid wages during the absence from work and to take care of her child. The Act is applicable to the establishments employing 10 or more employees. The Maternity Benefit Act, 1961 has been amended through the Maternity (Amendment) Bill 2017 which was passed in the Lok Sabha on March 09, 2017. Thereafter, the said Bill was passed in Rajya Sabha on August 11, 2016. Further, it received assent from the President of India on March 27, 2017. The provisions of the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”) came into effect on April 1, 2017, and the provision with regard to crèche facility (Section 111 A) came into effect with effect from July 1, 2017.

An overview of the Maternity Benefit Act, 1961

The Maternity Benefits Act of 1961 was passed by the Union of India on December 12, 1961, following the country’s independence. The statute included conditional benefits for pregnancy, childbirth, and complications related to those, in conformity with the then-current international standards. The Act covered a lot of areas with meticulous precision and care was paid to many dimensions of considerations influencing maternity benefits, despite the fact that India was still a developing nation and in its 14th year of independence.
The Maternity Benefit Act, 1961 governs maternity benefits in India. Every organisation with ten (10) or more employees is subject to the Act. According to the Act, maternity benefits are available to any woman who has worked for an organisation for at least eighty (80) days.
The Maternity Benefit Act, 1961 aims to provide all the facilities to a working woman in a dignified manner, so that she may overcome the “state of motherhood honourably, peacefully, undeterred by the fear of being victimised for forced absence during the pre or postnatal period”, as was observed by the Supreme Court in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000).
According to the Maternity Benefit Act of 1961, the employer must pay the beneficiary a medical bonus of up to 1,000 rupees if there is no prenatal confinement and no paid postpartum care. The Central Government has raised the medical bonus to 25,000 rupees. If the woman experiences a miscarriage or any other pregnancy-related complications, she is entitled to paid leave. A 30-day extra leave with pay is offered to the beneficiary upon verification of any ailment related to pregnancy. After reporting back to work, the mother is entitled to a break and is allowed two breaks to feed the child until they are 15 months old. The “facility of a crèche” has also been mandated to be available in convenient locations in every firm with fifty or more female employees. Women will be allowed to leave with pay for their tubectomy operation based on the proof provided.
According to the Act, it is against the law for an employer to fire or dismiss a pregnant woman while she is away or on account of her pregnancy, or to give notice of a termination on a day when the notice will expire while she is away, or to change any of the terms of her employment to their detriment. According to the law, light work allotted to pregnant women and breaks for child feeding are not grounds for wage deductions.
The statute is applicable to all businesses, including those that belonged to the government and those that employed people to do equestrian, acrobatic, and other acts for display in factories, mines, and plantations. Additionally, it applied to any store or business with ten or more employees. The inclusion of provisions for industrial, agricultural, and commercial establishments marked the act as a significant improvement over the rudimentary one from 1928. The Act covers all maternity benefits in the following sections:

• Section 4: Employment of, or work of, women prohibited during certain periods.

• Section 5: Right to payment of maternity benefits.

• Section 7: Payment of Maternity Benefits in case of death of a woman.

• Section 8: Payment of Medical Bonus.

• Section 9: Leave for miscarriage, etc.

• Section 10: Leave for illness arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical termination of pregnancy or tubectomy operation.

• Section 11: Nursing Breaks.

• Section 12: Dismissal during absence of pregnancy.

• Section 13: No deduction of wages in certain cases.

• Section 18: Forfeiture of maternity benefits.

The Act was revised by the Indian Government in 2017 to give women more inclusive maternity benefits. Among other amendments, a new clause, Section 5(5), was added to the Act, under which women who requested maternity leave might benefit from working from home. According to Section 5(5) of the Act, an employer may authorise nursing mothers to work from home if the nature of the work that is given to them permits it, under mutually agreed-upon terms.

Features of the Maternity Benefit Act, 1961

• Duration of leave: A woman is entitled to twelve weeks of maternity leave under the terms of the Act, not more than six weeks of which may come before the due date. The ILO guideline at the time took this into account.

• Job protection: According to the guidelines of the 1961 Act, it has been ruled unlawful for an employer to fire or let go of a woman at any time during or because of her absence. However, the employer may notify the employee in writing if the dismissal or discharge is the result of serious wrongdoing.

• Remuneration during leave: Women who meet the requirements for maternity leave outlined in the legislation are entitled to maternity benefits at the rate of the average daily salary for the time that they are really absent from work.

• Financial benefits: According to this law, every woman is entitled to maternity benefits and the option of receiving a medical bonus from her employer in the event that neither prenatal nor postpartum care is provided by the latter at no cost to the employee. The employer is responsible for paying all debts, including maternity benefits, to the woman’s nominee or legal representative in the event of her death.

Benefits covered under the Maternity Benefit Act of 1961

The Act requires the employee to refrain from hiring any known women in any place for the six weeks immediately following the day of the employee’s delivery, miscarriage, or medical termination of pregnancy. During the six weeks immediately following the day of delivery or miscarriage, no woman shall work in any company. The employer shall not require such women to perform any work unless requested to do so by the employed lady.

1. Which negatively affects her pregnancy or the foetus’s development normally,
2. Any work that could result in her miscarrying or otherwise have a negative impact on her health.

Every woman has the right to maternity benefits, and her employer is responsible for paying them at the amount of the average daily income for the time she was actually away from work, i.e.,:

1. The time leading up to the day of her delivery.
2. On the day she gave birth and for the period immediately afterwards.

Period of granting maternity benefit:

The maximum time a woman may get maternity benefits is twenty-six weeks, not including the eight weeks prior to the due date of her anticipated delivery, as per Section 5 (3), as amended by the Maternity Benefit (Amendment) Act 2017. Furthermore, in the event that a woman passes away within this time, the maternity benefit will only be paid for the days leading up to and including the day of her passing.
According to subsection (4) of Section 5, a woman who legally adopts a child under the age of three months or a mother who commissions an adoption will be eligible for maternity benefits for a period of twelve weeks starting on the day the child is given to the adopting mother or the commissioning mother, as applicable.
In accordance with subsection (5) of Section 5, if a woman’s job requires her to work from home, the employer may permit her to do so after she has claimed the maternity benefit for the time period and on the conditions that they may mutually agree upon.

Conditions for claiming maternity benefit

Only when a woman has really worked for the employer from whom she claims maternity benefits for a period of not less than eighty days in the twelve months immediately preceding the date of her anticipated delivery is she eligible to receive maternity benefits.

Methods of claiming maternity benefit

Any woman wishing to exercise the right to maternity benefit must submit a notice to her employer in the manner and on the form required by the business she is employed with in order to be eligible to claim the maternity benefit as provided for by the 1961 Act. This information should be included in the notice along with:

1. The maternity benefit and any additional funds to which she may be entitled in accordance with this Act.
2. The name of the individual who should receive such payments.
3. A statement stating that she will not work at the company while collecting these maternity benefits.
4. The day her absence from work officially started.

Following the woman’s provision of documentation proving her pregnancy, the employer is required to pay the woman’s maternity benefit in advance.

What happens if a woman dies in the duration of the period of maternity leave

The maternity benefit that applies to a woman only lasts up to the date of her death if she passes away within the above-mentioned term of maternity leave. The complete maternity benefit would be payable if the mother passes away soon after giving birth, resulting in the child’s survival. The employer is required to pay the maternity benefit that was in effect as of the date of the child’s death if the child passes away while the mother is still eligible for it. When a woman passes away, these payments must be made to the person she specified in the notification she gave under Section 6 (1) of the Act, or if she did not nominate anybody, to her legal representative.

Filing of a complaint under the Maternity Benefit Act of 1961

A woman has sixty days to appeal the decision if she is denied maternity benefits or medical benefits, released from her job, or expelled while on maternity leave. She may do this by approaching an inspector designated by the Maternity Benefit Act, 1961. In the unlikely event that she disagrees with the inspector’s requests, she has thirty days to make a counteroffer to the suggested expert. If she disagrees with the inspector’s requests or if a more significant legal issue is raised, she may also file a lawsuit within a year.

Advantages and disadvantages of the Maternity Benefit Act, 1961

The existence of a maternity benefit law is crucial for women’s rights and financial stability. This section of the article will draw attention to a few key advantages and shortcomings that specifically relate to Indian law.

1. First and foremost, it is certain that every female employee in every store, factory, mine, or on the other hand, manor, is covered by the Maternity Benefit Act, 1961. This means there are no standards to evaluate the type of work women do in these work contexts in order to determine if they are qualified. It is also important to keep in mind that the Act of 1961 permits the state governments to extend the Act to another foundation. For instance, the Keralan government has expanded all of the Maternity Benefit Act, 1961 provisions so that they now embrace foundations classified as business foundations under the Kerala Shops and Commercial Establishments Act, 1960. A business foundation is defined in this example as “a business, modern, exchanging, managing, or protecting foundation, a foundation or authoritative administration in which the people utilised are primarily engaged in office work, lodging, eatery, boarding or eating house, bistro or any other refreshment house, theatre or some other place of open beguilement or entertainment.”

1. The Act of 1961 provides full pay (100 percent of salary) for women on maternity leave since it states that female representatives may be paid at the amount of their typical daily remuneration. The maternity legislation, therefore, is more dynamic than the corresponding component in the legislation of several European and other formed nations. The provisions on payment of the Act of 1961 also comply with ILO Convention No. 183, which states that maternity benefits must be based on past earnings and cannot be less than 66% of the woman’s prior earnings.
2. Because of the financial independence that salaried work gives women, it also gives them options when faced with violent behaviour at home. Although it might be a result of financial stress, imbalances, or neediness, work drive investment is considered as not being fundamentally positive because it can place a double burden of labour on women who are responsible for all domestic duties in the family. In this sense, corporate perks, especially maternity benefits, are important additions to women’s salaried labour. Maternity leave can create a space that improves a woman worker’s capacity to balance work and family obligations.

Applicability

Upon reading Section 2 along with Section 3 (e) of Maternity Benefits Act, 1961 (“Act”), it can be safely concluded that the Act is applicable to establishments such as factories, (“factory” as defined in the Factories Act, 1948), mines (“mine” as defined in the Mines Act, 1952) and plantations (“plantation” means a plantation as defined in the Plantations Labour Act,1951).

The Maternity Benefit Act also applies to establishments belonging to Government and establishments wherein persons are employed for the exhibition of equestrian, acrobatic and other performances as per section 2(b). The said Act is also applicable to every shop or establishment defined under law, wherein ten or more persons are employed on a day during the preceding twelve months and which is applicable in relation to shops and establishments in a particular state.

Thus, considering the above, in Delhi, the Act applies to all “establishments” and “commercial establishments” which are covered under the ambit of Section 2(9) and 2(5) respectively of the Delhi Shops and Establishments Act, 1954.

Further, as per the proviso of Section 2 of the Maternity Benefit Act, the State Government may, subject to obtaining approval from the Central Government, declare that the provisions of Act be applicable to any other establishment or class of establishments which are either carrying out industrial, commercial or agricultural activities or otherwise any other activity.

It may be noted that the provisions contained in this Act, save as otherwise provided in sections 5A and 5B, shall not be attracted to any factory or other establishments to which the provisions of the Employees’ State Insurance Act, 1948, as per Section 2(2) of the Act. Further, as per Section 26 of the Act, the appropriate Government has the power to exempt through a notification, an establishment, from the ambit of the Act subject to the conditions laid down in Section 26.

Eligibility

A woman must be working as an employee in an establishment for a period of at least 80 days in the past 12 months to be entitled to maternity benefit under the provisions of the Maternity Benefit Act.

Main Highlights of the Amendment in Material Benefit

The Maternity Benefits (Amendment) Bill, 2017 was approved by the Rajya Sabha and Lok Sabha on August 11, 2016, and the President of India gave his assent on March 27, 2017. The Maternity Benefits (Amendment) Act 2017’s provisions become operative in India on April 1, 2017. However, the clauses relating to the childcare facility (Section 11) came into force on July 1, 2017. The Act after the change still adheres to its fundamental principles but offers better benefits and promotes better child care. According to our investigation, the four levels of this statute have undergone the following changes:

• Duration of leave: The amendment offers 26 weeks of maternity leave, not to exceed 8 weeks prior to the anticipated due date unless they have two or more living children. The overall period of maternity leave is shown to have increased by 117% since the previous Act. Additionally, it complies with the ILO’s suggestion of 18 weeks or more. This amendment was passed in order to provide mothers enough time for self-healing and to improve child care, both of which would lower the rate of infant mortality. Adoption is an exception to this rule. A commissioning mother or a woman who adopts a child under three months old is eligible for twelve weeks of maternity leave.

• Job protection: The original Act’s discharge and dismissal clause remain unchanged.

• Financial benefits: No immediate financial benefits have been put into practice. However, the amendment stipulates that a woman has the right to work from home provided both her employer and she mutually agrees to this. Every business with 50 or more employees should include a crèche facility, either independently or as part of the common areas. This is another benefit. The employer will permit the woman four visits to the childcare provider.

The most important modification extends maternity leave from 12 to 26 weeks. According to the WHO, a child should be nursed for 24 weeks after birth to lower the death risk. Additionally, it ought to lower the number of women quitting their jobs as a result of insufficient maternity leave. Additionally, the longer leave period is in accordance with the Maternity Benefits Convention’s suggestion (no. 183). The addition of maternity leave for commissioning and adopting women is an important one that allows them to take care of themselves and their children while also honouring their parenthood. Due to these changes, India now ranks third globally in terms of the number of maternity benefits available to women, behind Canada and Norway.

Impact of the Maternity Benefit (Amendment) Act, 2017 on employability

The effects of the Maternity Benefit (Amendment) Act, 2017 on employability have been listed hereunder:

1. Many employers in private companies may refrain from hiring such women who may be about to become pregnant because they are required to give them maternity leave and compensation for that time (up to 26 weeks). Since the amendment, many firms view hiring women as a hardship. The exclusive obligation of the employer to pay all wages in full during the allotted time increases production costs for employers.
2. A rise in production cost occurs as the exclusive obligation of the employer to pay all wages in full during the allotted time increases costs for employers.
3. The provision makes employers worry about their financial stability, which can lead to a predilection for hiring men over women.
4. Losses brought on by extended maternity leave, which helps businesses that generally hire female employees.
5. Reduces the employment chances for women employees since businesses are either reluctant to hire them or ask them to quit right before giving birth in order to avoid further liability.

Creche Facility Introduced by Maternity Benefit (Amendment) Act, 2017

In terms of Section 11A of the Maternity Benefit Act, every establishment to which the Act applies and have fifty or more employees must establish a Crèche facility within such distance as may be prescribed through notification. The Creche must be established either separately or along with common facilities. The employer must allow women at least four visits a day to the crèche and it shall also include the interval for rest allowed to her. Every establishment is required to intimate in writing and electronically to every woman at the time of appointing her initially regarding every benefit available under the Maternity Benefit Act.

National Guidelines for setting up and running creches under the Maternity Benefit (Amendment) Act, 2017

Section 11A mandates the establishment of crèches within such distance as may be prescribed, either separately or along with common facilities. As per Section 2(l), “prescribed” means prescribed by rules made under this Act. Further, as per Section 28 of the Act, rules can be prescribed by the State or Central Government as the case may be for carrying out the purposes of the Act. The following are some of the key guidelines published in the Gazette by the Ministry of Women and Child Development.

Crèche For Whom

The use of a crèche facility is proposed to be extended to children of the age group of 6 months to 6 years of all employees including temporary, daily wage, consultant and contractual personnel.

Crèche Location

The center should be near/at the workplace site or in the beneficiaries’ neighborhood, within 500 meters.

Timings

The crèche preferably should open for 8 hours to 10 hours. In this case, the workers can follow a shift system. In case the establishment has day and night shifts, then the crèche should also be run in shifts.

Facilities to be provided

Crèches should be concrete, with a min space of 10-12 sq.ft. per child, with ventilation, drinking water and with no unsafe places such as open drains, pits, garbage bins near the center. Further, other facilities to be provided include:

• A guard, who should have undergone police verification.
• Ramps and handrails.
• Every Creche should have one supervisor per crèche.
• The Creche should have a minimum of one trained worker for every 10 children who are under three years of age.
• For every 20 children above the age of three, the creche should have one trained worker along with a helper.
• No plumbers, drivers, and electricians and other outside persons should be allowed inside the crèche when children are present.
• A Crèche monitoring committee should be formed having representations from among crèche workers, parents, and administration.
• Forming a grievance redressal committee for inquiring into instances of sexual abuse.

Maternity Benefit (Mines and Circus) Amendment Rules 2019

It is pertinent to note these rules do not apply to Crèches established in Mines and Circus establishments. Crèches in Mines are regulated by the Maternity Benefit (Mines and Circus) Amendment Rules 2019. Some of the key provisions include:

• Rule 2 (b) – The crèches are set up for children under 6 years of age.
• Rule 4- The crèches are divided into 4 Types (A, B, C, D) based on the number of women employed.
• Rule 4- Basic Standard requirements to be provided.
• Rule 8- The crèches shall be open during the whole day and open at night if the women employees are at the office.
• Rule 9- Restriction of access to outsiders.
• Rule 10- Guidelines for medical arrangements.

Are creche facilities mandatory?

The language of Section 11A of the Amendment Act, 2017 is that Crèche facilities shall be established at “every establishment”. Thus, going by the rule of literal interpretation, it can be inferred that the section mandates to establish crèches only in those “establishments” covered under the definition of “establishment” under Section 3 (e) of the Act.

Further, it can also be inferred that an “establishment” excluded under Section 2(2) or excluded by notification under Section 26 of the Act, is not obliged to set up a crèche as mandated.

As mentioned above, Section 11A’s mandate to set crèches applies to “establishments” under the ambit of the Maternity Benefit Act, 1961. Further, the clarification notification issued on behalf of The Maternity Benefit (Amendment) Act, 2017, clarified that as Section 2 has not undergone an amendment, there are no changes regarding the application of the Act of 1961. As per Section 2(b), an “establishment” includes every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State.

Consequently, crèches are mandatory in all establishments covered under Delhi Shops and Establishment Act, 1954. As per Section 2(5) of the 1954 Act, “commercial establishment” means any premises wherein any trade, business or profession or any work in connection with, or incidental or ancillary thereto is carried on..”. Further, as per Section 2(9) of the Act of 1954, “ ‘establishment’ means a shop, a commercial establishment…”.

Thus, Crèches are mandatory in companies, firms and consultant companies even though they may be incorporated or registered under The Partnership Act, 1932 or Companies Act, 2013.

Maternity Leave in India: Rules, Eligibility and Benefits

The Maternity Benefit Act 1961 applies to all women employed in factories, mines, plantations, and organisations with 10 or more employees. Learn more about eligibility for maternity leave in India in this section. 

Maternity Leave Eligibility

Prerequisite for Proof of Work 

The Maternity Benefit Act 1961 states that a woman should have worked with her employer for at least 80 days in the 12 months preceding the date of her expected delivery. If she fulfils this requirement, then she can utilise this mandated maternity leave and any further leave or benefits that her employer provides her. 

Eligibility of Motherhood in India 

All women who are pregnant, adopting a child, or experiencing a miscarriage are eligible for maternity leave in India, as they fulfil the criteria that determine the categories of motherhood in India. Commissioning, or surrogate mothers, are also entitled to up to 26 weeks of maternity leave which starts from the day the newborn is handed over to the adoptive parents. 

• Pregnant women 

• Women adopting a child 

• Women who experience a miscarriage 

• Surrogate or commissioning mothers 

Companies and Fields Covered in Maternity Leave 

Maternity Leave in India is available to women employees in the public and private sectors. Their rights are protected under the Maternity Benefit Act, 1961. The Maternity Act covers all establishments that employ 10 or more people, and provides for the payment of maternity benefit to female employees when they need to use their maternity leave while they are pregnant or during childbirth and beyond.

However, the Indian Maternity Benefit Act, does not apply to women who are self-employed, or at workplaces that have less than 10 employees. 

Maternity Leave Benefits

Maternity Leave Period 

A woman employee can use her maternity leave in India for a certain period of time, when she will receive her full salary while she is away fulfilling her maternal obligations and duties. 

For first and second-time mothers, the Maternity Benefit Act 1961 states that she can take 6 months, or 26 weeks, off. With every subsequent child, the mother can avail 3 months, or 12 weeks, off for her maternity leave, which is a paid leave wherein her employer needs to pay her salary in full.

Further Maternity Leave Benefits 

The Maternity Benefit Act ensures the holistic wellbeing of mothers and their babies. To This end, the Maternity Benefit Act provides mothers with provisions for child care, and the employee can go back to her previous post when she returns from her maternity leave.

A woman employee might not be able to return to work as soon as expected after her maternity leave period. Motherhood will and can take an emotional, physical, and mental toll on new mothers in particular. As stipulated by the Maternity Benefit Act 1961, her employer has to grant her additional leave days until she is able to return. This will not only ensure that her wellbeing and her baby's are secured, but also that she is able to return to a workplace that supports and assists her on this big transition. Whether a woman is a first-time mother or a seasoned parent, it is always an added benefit to have the support of her employer. To protect the livelihood of expectant mothers and those with newborns, the Maternity Benefit Act 1961 states that employers cannot fire or dismiss their women employees solely because they are pregnant, going through labour, or recuperating post-childbirth.

Pregnant Employee Benefits 

Pregnant employees need extra care, which is outlined in the Maternity Benefit Act 1961. To ensure that pregnant women are able to work in a safe and healthy manner, their workplace has to provide certain amenities such as hygienic rest rooms, comfortable seating or working arrangements, and safe drinking water. 

Understanding the Maternity Benefit Act 1961

The Maternity Benefit Act, 1961 set the groundwork for establishing maternity leave eligibility, requirements, and benefits for women employees in India. With the passing of time, the family structure and the definition of motherhood changes, making it incumbent to update the Maternity Benefit Act with the times.

The latest amendment in 2017 paved the way for the Maternity Benefit (Amended) Act, 2017. This updated maternity policy includes beneficial changes such as increasing the period of maternity leave from 12 weeks, to 26 weeks. Extending maternity leave is in the interests of mothers, their children, and the mother's organisation. A supported mother is an asset to her company, and will be quick to respond to projects, deadlines, and work commitments over a tired mother who has to quickly bounce back and return to the workforce.

Importance of Maternity Leave in India

Maternity leave in India offers pregnant women and mothers time off from work to care for their health and well-being during pregnancy, childbirth, and the postpartum period. It also helps to promote gender equality in the workplace by allowing women to take time off to care for their newborns without worrying about losing their jobs or income.

In India, the Maternity Benefit Act of 1961 requires employers to provide women with paid maternity leave for a certain number of weeks. The length of the leave varies depending on the number of children the woman is giving birth to, but it is generally around 12 weeks. This leave can be taken before or after the birth of the child, or a combination of both.

With maternity leave, women can focus on their physical and emotional health during pregnancy, childbirth, surrogacy and adoption. It helps them bond with their newborns and to establish breastfeeding, which has numerous health benefits for both the mother and the child. Additionally, maternity leave helps to reduce the risk of complications during pregnancy and childbirth, and it can also help to improve the overall health of both the mother and her child.

Maternity Leave Policy Rules in India

Maternity leave policy in India covers the full salary by the employer, the amount of time the mother can benefit from the maternity leave, and further benefits. The Indian Maternity Benefit (Amended) Act 2017 states that a woman employee will be compensated during her maternity leave in full. This rate is calculated according to her salary or daily wages in the 3 months preceding her maternity leave request. As outlined above, the mother should have worked at her workplace for a minimum of 80 days in the 12 months before her delivery date or adoption date.

A woman employee can take up to a maximum of 26 weeks off on her maternity leave depending on whether this is her first or subsequent child. She can use up to 8 weeks off before her delivery, out of her stipulated 26 weeks maternity leave. The mother does not need to utilise her maternity leave in this way, but can opt to use it from the time she adopts her child, or delivers the child. Most mothers choose to take some time off before the delivery or adoption however, with a majority of the maternity leave falling after she meets her child. 

Benefits of Maternity Leave in India

In India, maternity leave is a legal right provided to women who are expecting or have recently given birth. It is intended to provide time for new mothers to recover from childbirth and bond with their newborn babies. Maternity leave also allows women to continue their employment while taking time off to care for their families.

Health Benefits 

Maternity leave allows new mothers to take time off to physically recover from childbirth and take care of their own health.

Establish Bond with Newborn

Maternity leave allows new mothers to spend time with their newborns, which is important for bonding and attachment. This stage of a baby's life is key in establishing a happy, healthy, and well-rounded child to blossom into a flourishing adult. 

Job Security

Maternity leave allows women to continue their employment while taking time off to care for their families, which can help to maintain their career progression.

Overall, maternity leave is an important benefit for women in India, as it helps to support the health and well-being of new mothers and their families, and promotes gender equality in the workplace.

HR Maternity Leave Policy

The latest amendments to the Maternity Benefit Act made way for the Maternity Benefit (Amendment) Act 2017. Rajya Sabha passed the updated maternity leave rules and regulations in 2016, and the Act was approved in 2017. These updates take into consideration changing family structures, breakthroughs in the definition of motherhood, and improved well being of mothers and their children. 

Notable amendments to the Maternity Benefit Act 1961:

1. The former paid maternity leave in India was increased from 12 weeks to 26 weeks for women employees 

3. The pre-natal leave has increased from 6 weeks to 8 weeks

4. A woman who currently has 2 children and is applying for maternity leave for her 3rd child, or subsequent children, is eligible for 12 weeks of maternity leave 

5. When a woman employee adopts a child under 3 months old, she is eligible for maternity leave of 12 weeks

6. Commissioning, or surrogate mothers, are entitled to 12 weeks of maternity leave which starts from the day the newborn is handed over to the adoptive parents

Maternity Leave Challenges for Employers

Although the Maternity Benefit Act in India safeguards the interests of mothers and their babies, the mother's employer may find it difficult to operate without her expertise while she is away. Employers without HR policies covering maternity leave, or that do not have a contingency plan tend to suffer the repercussions, even if temporary, while their woman employee is on her maternity leave. 

Strain on Resources 

A clear issue for employers with one or more women employees on maternity leave is that they will face a considerable strain on resources. Covering for an employee's temporary absence can hinder progress, because other resources may be employed as a stop-gap measure. Some companies may hire freelance or contract workers to fill in temporarily, but these resources may not be on par with their women employees. 

Decreased Work and Productivity

As mentioned above, the temporary void that a woman employee leaves when she is on maternity leave can affect a company. Usually, entities that are not prepared for such situations, or organisations with insufficient or poor HR policies concerning maternity leave policies will suffer the most. Workloads may increase as remaining resources try to cope up with new or alien job roles and responsibilities, which subtracts from productivity. 

Retaining Top Talent 

Companies without supportive maternity leave policies in India will find it challenging to hire and retain top talent. In a post-pandemic work culture, many mothers choose to work remote, or in a flexible hybrid model for better work-life balance and raising a family. A company that cannot support their goals and aspirations will be dropped in favour of one that does. 

Uneven Distribution of Work 

Although it may not be discussed directly, maternity leave in India can impact morale at the workplace. Employees who may not be eligible for maternity leave may feel resentful towards the pregnant mother, or new mother. This is especially true if the employees feel like they are taking up the slack with added responsibilities, or if they feel that the workload is not being fairly distributed.

FAQs

How many months is maternity leave in India?

For first and second-time mothers, the Indian Maternity Benefit Act 1961 states that she can take 6 months, or 26 weeks, off. With every subsequent child, the mother can avail 3 months, or 12 weeks, off for her maternity leave, which is a paid leave wherein her employer needs to pay her in full.

Will I get a salary during maternity leave?

Yes, according to the Indian Maternity Benefit Act 1961, you are entitled to your full salary for the duration of your maternity leave. Your employer cannot hire, nor discriminate against you solely because you are pregnant or have delivered a child. 

When does maternity leave start?

Women employees who wish to use their maternity leave in India can do so if they have worked at their company for at least 80 days in the 12 months before their delivery or adoption date. Although there is no set date when an employee can take her maternity leave, she can take 26 weeks off for her first 2 children, and 12 weeks off for subsequent children. She must avail her maternity leave within 6 months of her delivery date.

Are employees eligible for employee benefits during maternity leave?

In addition to the Maternity Leave and Benefits listed in this article, women employees in India can also receive standard employee benefits when they are off, on their maternity leave. She can avail applicable company benefits to employees including medical insurance, housing allowance, and other perks and allowances. 

Who pays for maternity leave?

Maternity leave in India is paid by employers to their expectant or newly-delivered women employees. The employer needs to pay the female employee her full salary during the entire time she is on maternity leave. In addition, the employee can provide further maternity benefits or leave days according to her employment contract or applicable laws.

Maternity Benefits Bill, 2016 It is an amendment to the Maternity Benefit Act of 1961. It was passed in Rajya Sabha in 2016 and in Lok Sabha in 2017. The Act protects the employment of women during the time of their maternity and entitles maternity benefits. A maternity benefit is a fully paid absence from work to take care of her child. It is applicable to all establishments employing ten or more persons. Even establishments having 50 or more employees are also required to provide creche facilities. Parliament has passed Maternity Benefits Bill, 2016, to raise maternity leave for working women from 12 weeks to 26 weeks. Maternity leave for adoptive and commissioning mothers is 12 weeks.

Eligibility for maternity benefits A woman must have been working as an employee in an establishment for a period of at least 80 days within the past 12 months. The payment during the leave is based on the average daily wage for the time of actual absence.

The Maternity Benefit Act, 1961, a social welfare-oriented law aimed at empowering women provides security (both employment and financial) for women employees before and after child birth. It provides for cash and non-cash benefits, including a maximum period of leave of 12 weeks, divided equally between pre and post birth periods. Non-cash benefits include a reduced work load (Section 4.3), a medical bonus if the employer does not provide pre and post natal support (Section 8) and two nursing breaks every working day till the child attains 15 months (Section 11).

MCQs on Maternity Benefit Act 1961

1) When did Maternity Benefit Act 1961, come into force?

A) 01 April 1966
B) 01 March 1967
C) 01 May 1960
D) 12th December 1961

Answer –D) 12th December 1961

2) Which section of the Maternity Benefit Act 1961 deals with the Right to payment of maternity benefits.?

A. Section 12 of the Maternity Benefit Act 1961
B. Section 5 of the Maternity Benefit Act 1961
C. Section 4 of the Maternity Benefit Act 1961
D. Section 9 of the Maternity Benefit Act 1961

Answer B. Section 5 of the Maternity Benefit Act 1961

3. Which section of the Maternity Benefit Act 1961 deals with Payment of maternity benefit in case of death of a woman._ ?

A. Section 7 of the Maternity Benefit Act 1961
B. Section 4 of the Maternity Benefit Act 1961
C. Section 3 of the Maternity Benefit Act 1961
D. Section 8 of the Maternity Benefit Act 1961

Answer – A. Section 7 of the Maternity Benefit Act 1961

4. Section 28 of the Maternity Benefit Act 1961 deals with_______?

A. Penalty for contravention of Act by employer
B. Power to make rules.
C. Forfeiture of maternity benefits.
D.Penalty for obstructing Inspector.

Ans- B. Power to make rules.

5. Protection of action taken in good faith, is provided in section____ of the Maternity Benefit Act 1961

A. Section 34 of the Maternity Benefit Act 1961
B. Section 22 of the Maternity Benefit Act 1961
C. Section 24 of the Maternity Benefit Act 1961
D. Section 28 of the Maternity Benefit Act 1961

Ans- C. Section 24 of the Maternity Benefit Act 1961

6. Section 23 of the Maternity Benefit Act 1961 provides _?

A..Cognizance of offenses
B. Power of Inspector to direct payments to be made.
C.. Effect of laws and agreements inconsistent with this Act
D. Protection of action taken in good faith.

Ans- A..Cognizance of offenses

7.Which section of the Maternity Benefit Act 1961 deals with the Forfeiture of maternity benefits?

A. Section 12 of the Maternity Benefit Act 1961
B. Section 19 of the Maternity Benefit Act 1961
C. Section 18 of the Maternity Benefit Act 1961
D. Section 15 of the Maternity Benefit Act 1961
Answer – C. Section 18 of the Maternity Benefit Act 1961

8. Section 25 of the Maternity Benefit Act 1961 deals with_______?

A. Power of Central Government to give directions
B. Penalty for obstructing Inspector.
C. Power to make rules
D. Power to exempt establishments.

Ans- A. Power of Central Government to give directions

9) Which section of the Maternity Benefit Act 1961 deals with the Payment of medical bonus.?

A. Section 7 of the Maternity Benefit Act 1961
B. Section 8 of the Maternity Benefit Act 1961
C. Section 4 of the Maternity Benefit Act 1961
D. Section 5 of the Maternity Benefit Act 1961

Answer B. Section 8 of the Maternity Benefit Act 1961

10) Section 10 of the Maternity Benefit Act 1961 deals with_______?

A.Leave for miscarriage
B.. No deduction of wages in certain cases.
C.Leave for illness arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical
termination of pregnancy or tubectomy operation.
D. Dismissal during the absence of pregnancy.

Answer- C.Leave for illness arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical

termination of pregnancy or tubectomy operation. 

Maternity Act, 1961 - MCQs with answers - Part I

1. _____________ means in relation to an establishment being a mine (or an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances) the Central government and in relation to any other establishment.

a. Employer
b. Appropriate government
c. Establishment
d. Factory

View Answer / Hide Answer

ANSWER: b. Appropriate government

2. In the maternity act, an inspector is appointed under which section?

a. Section 14
b. Section 2
c. Section 10
d. Section 15

View Answer / Hide Answer

ANSWER: a. Section 14

3. What is the minimum number of days that a woman should have worked in an establishment before claiming the maternity benefit?

a. 365 days
b. 120 days
c. 80 days
d. 240 days

View Answer / Hide Answer

ANSWER: c. 80 days

4. What is the maximum period for which any woman is entitled to maternity benefit?

a. 6 weeks
b. 26 weeks
c. 18 weeks
d. 24 weeks

View Answer / Hide Answer

ANSWER: b. 26 weeks

5. What is the amount of medical bonus entitled to a woman who is also entitled to receive maternity benefit?

a. 250 rupees
b. 500 rupees
c. 1000 rupees
d. 100 rupees

View Answer / Hide Answer

ANSWER: a. 250 rupees

6. The maternity benefit act's objectives were achieved by the enactment of _______________

a. Factories Act, 1948
b. Payment of wages act, 1936
c. Employees State Insurance Act of 1948
d. Standing orders act, 1946

View Answer / Hide Answer

ANSWER: c. Employees State Insurance Act of 1948

7. In which year did the amendment act come into force?

a. 1996
b. 1961
c. 1998
d. 1976

View Answer / Hide Answer

ANSWER: a. 1996

8. Which section of the act states the conditions for eligibility of benefits?

a. Section 18
b. Section 5
c. Section 10
d. Section 8

View Answer / Hide Answer

ANSWER: b. Section 5

9. Till what age of the child will a mother get 2 nursing breaks in the course of her daily work?

a. 12 months
b. 6 months
c. 18 months
d. 15 months

View Answer / Hide Answer

ANSWER: d. 15 months

10. How many weeks in advance a written notice for maternity leave has to be given to the employer by the expecting women?

a. 4 weeks
b. 7 weeks
c. 1 week
d. 8 weeks

View Answer / Hide Answer

ANSWER: b. 7 weeks

Maternity Act, 1961 - MCQs with answers - Part II

1. State true or false:

i. Section 10 discusses about the leave for illness arising out of pregnancy.

a. True
b. False

View Answer / Hide Answer

ANSWER: a. True

2. State the objectives of the act?

a. To regulate the employment of women workers in such establishments for certain period before and after child birth.

b. Application of act in every establishment being a factory, mine or plantation

c. To provide satisfactory conditions to expectant women

d. All of the above

View Answer / Hide Answer

ANSWER: a. To regulate the employment of women workers in such establishments for certain period before and after child birth.

3. As per section 18, if an employer discharges or dismisses a woman during or on account of her absence from work during the maternity leave, then what is the punishment faced by an employer?

a. 3 months or more and will extend to 1 year
b. 6 months or more and will extend to 2 years
c. 3 months or more and will extend to 2 years
d. None of the above

View Answer / Hide Answer

ANSWER: a. 3 months or more and will extend to 1 year

4. As per section 9, for how many weeks a woman is entitled for leave in case of a miscarriage?

a. 3 weeks
b. 9 weeks
c. 1 week
d. 6 weeks

View Answer / Hide Answer

ANSWER: d. 6 weeks

5. State true or false:
i. Section 17 describes the obligations of the employer under the maternity benefit act.

a. True
b. False

View Answer / Hide Answer

ANSWER: b. False

Reason: Section 19 states the obligations of the employer under the maternity benefit act.