CMR SCHOOL OF LEGAL STUDIES

Analysis of Maternity Benefit Act,

2017 & its impact on women
employment
SUBJECT: LABOUR LAW I

SUBMITTED TO: Mrs. Gayathri

Designation: Assistant Professor

SUBMITTED BY: Divyam Mishra

CLASS: BA LLB (3rd Year)

Registration No. 17BALB015

I. Literature Review:

A. Introduction:
“Beginning in the 1800s with the Industrial Revolution, when women started to go into the
formal workforce, leaving working at home to working in factories, countries realized they
needed to do something. And they stated to pass paid maternity leave.”

~ Jody Heymann

This research paper deals with an analysis of Maternity Benefit Act, 1961 and how 2017 Act
came into force with landmark case laws. This research paper has analyzed about the impact on
women employment. In the history of mankind women has been subject to various constraints
and compulsion in the man-dominated society. The Problem of her suppression has not been
confined to any particular region, religion or any socio-cultural relationship and it has travelled
beyond all these boundaries. Basically, it appears that sex-discrimination has been a root-cause
of her subordinated position. This discrimination is very clearly visible in the field of industrial
workers ever since the world became industrialized.. It is also a tyranny that about half of the
world population is crushed under the giant wheels of industrialization. However with the
passage of time and growing awareness among the woman-folk. emergence of several woman
organizations and evolution of the concept of civilized society, the situation improved gradually
and the various Constitutions, including Indian, has made special provisions for the protection of
women, particularly when she is on he r family-way and undergoes pregnancy when she needs
more protection, medically, and emotionally. Modi Government made an initiative to give them
their basic employee rights by Amending the Maternity Benefit Act.1

B. Report Problem: In modern day society, economic pressures have increased the need for
families to have dual incomes. This is because women’s participation in economic activity is
contingent upon various factors, via, biological, economic, social or cultural, which result in
gender inequality in the family as well as in the economic and political system (Abha and
Shrivastava, 2001). Women’s ties with pregnancy and child rearing and the failure of employers
and policymakers to deal consistently with this issue exacerbate the difficulties women face in
the economy. Women continue to have the primary responsibility for housework and childcare,

1
Shashi Bala, Implementation of Maternity Benefit Act, (23/03/2020 13:!5),

https://vvgnli.gov.in/sites/default/files/2012-099.pdf.
 even when they have extremely demanding jobs. Historically, maternity has been treated as a
state of disability in women workers from undertaking any work during the few weeks
immediately preceding and following child birth. With the emergence of the system of wage
labour in the industrial undertakings, many employers tended to terminate the services of the
women workers when they found that maternity interfered with the performance of normal duties
by women workers. Many women workers, therefore, had to go on leave without pay during this
period in order to retain their employment. Many others had to bear a heavy strain to keep their
efficiency during the periods of pregnancy, which was injurious to the health of both, the mother
and the child. To remove this hardship of the women workers, the concept of maternity benefit
came about in order to enable the women workers to carry on the social function of child;
bearing and rearing without undue strain on their health and loss of wages.2
C. Report Question:
 How Maternity Benefit Act, 2017 came into force?
 Whether there is proper effectiveness on implementation of this act in India?

D. Reasons for need of Maternity Benefits:

Women workers across the world are at a disadvantage because of certain biological reasons.
They have to put up with menstruation, pregnancy, child birth, lactation child rearing,
menopause and various complications arising out of these problems. Suitable measures for
protection of health and wages of women workers during maternity period are of significance not
only for women workers but also to the society. Maternity benefits are essential to bring about a
reduction in infant mortality rates in the country. To safeguard working women and their rights
to remain self-reliant and economically independent, maternity benefits are required.
Historically, maternity has been treated as a state of disability in women workers from
undertaking any work during the few weeks immediately preceding and following child birth.
Many women workers, therefore, had to go on leave without pay during this period in order to
retain their employment. It was the Government of the State of Bombay that enacted the first
maternity benefits legislation in the year 1929. This legislation was regarded as very progressive.
Soon some other states followed similar laws with some minor variations e.g. eligibility, rate of
wages, etc. With a view to reduce the disparities relating to maternity protection under the
various Acts, the government of India enacted in 1961, a new Act called the Maternity Benefit
Act 1961.3

2
Shashi Bala supra note 1 at 3.

3
Richa Jhanwar, The Need for Maternity Benefits of Women employee, Lawctopus,(23/03/2020, 13:!5),
https://www.lawctopus.com/academike/the-need-for-maternity-benefits-for-women-employee/.
II. Maternity Benefit Act, 1961
Object: The object of the act is:

1. To provide for maternity benefits to women workers in certain establishment.

2. To regulates the employment of women worker in such establishment for certain period before
and after child birth.

The Act is applicable to every establishment which is a factory mine or plantation including
Government establishments and to every establishments where in persons are employed for the
exhibition of equestrian, acrobatic and other performances. It also provides for maternity leave
and payment of certain monetary benefits to be paid for women workers during the period.

The Act has come into force on 5th October, 1963 and extends to whole of India including State
of Jammu and Kashmir.

a) Eligibility Criteria:
It stretches out to the entire of India and spreads female representatives in any shop or foundation
utilizing at least 10 people. The meaning of foundation incorporates industrial facilities, mines,
manors and foundations where individuals are utilized for the display of equestrian, aerobatic
and different exhibitions.
b) Leave:
A lady is qualified for maternity benefits on the off chance that she has been utilized 80 days or
more in an year going before conveyance. a female representative is qualified for 12 weeks of
maternity take off. Not more than six of these weeks might go before the date of conveyance.
c) Healthy benefits:
A lady has the privilege to 2500 rupees in restorative reward and two nursing breaks for each
working day until the point when her tyke accomplishes the age of 15 months.
Moreover, it imposes punishment for a period of minimum three months or fine extending to Rs.
5000 on the employer, in the event of any failure to provide maternity benefits to female
employees.4
 Drawbacks:

4
Koneru Anuradha, Maternity Benefit (Amendment) Act, 2017 A big and Positive Step towards improvement in
securing the employment rights to women, Legal Service India, (23/03/2020 13:!5),
http://www.legalserviceindia.com/legal/article-176-the-maternity-benefit-amendment-act-2017-a-big-and-positive-
step-towards-improvement-in-securing-the-employment-rights-of-women.html.
 1. It will benefit only 1.8 million women in the organized sector leaving out practically more than
90% of the country’s women workforce which falls within the unorganized sector.
2. There is no non-discrimination clause in the bill which is required to guarantee that no person is
discriminated against in employment for having availed any parental benefits.
3. The topic of surrogacy has not been addressed clearly in the bill. As The Bill says that the person
adopting the baby post-surrogacy is entitled to maternity leave in order to bond with the child.5

III. ISSUES RAISED BEFORE THE SUPREME COURT WITH

REFERENCE TO THE MATERNITY BENEFIT ACT, 1961
AND JUDICIAL RESPONSE
Municipal Corporation of Delhi v. Female Workers: In this case Union of Female Workers who
were not on regular rolls, but were treated as temporary workers and employed on Muster roll,
claimed that they should also get maternity benefit like regular workers. The court held that the
provisions of the Act would indicate that they are wholly in consonance with the Directive
Principles of State Policy, as set out in Article 39 and in other Articles, especially Article 42. It is
for this reason that it is provided in the Act that she would be entitled to maternity leave for
certain periods prior to and after delivery.

Shah vs. Presiding Officer, Labour Court, Coimbatore and others: The question before the
Supreme Court was whether in calculating the maternity benefit for the period covered by
Section 5 Sundays being wage less holiday should be excluded. Issue Raised before the Courts
with Reference to Maternity Benefit Act, 1961. The Apex Court in holding that Sundays must
also be included, applied the beneficial rule of construction in favor of the woman worker and
observed that the benefit conferred by the Act read in the light of the Article 42 of the
Constitution was intended to enable the woman worker not only to subsist but also to make up
her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level
of her previous efficiency and output.

At the same time national judicial pronouncements time to time Indian Government amending
the Maternity benefit Act to reform Maternity benefit Act 1961, in that way recently the
Maternity (Amendment) Bill 2017, an amendment to the Maternity Benefit Act 1961, was passed
in Rajya Sabha on August 11th, 2016; in Lok Sabha on March 9 th, 2017, and received an assent
from President of India on March 27, 2017.6

IV. Maternity Benefit Act, 2017

The provision of the Maternity Benefit (Amendment) Act, 2017 are effective from April 1st, 2017
are effective from April 1st, 2017. The main aim of the Act is to regulate the employment of

5
Santosh Kumar, Maternity Benefit (Amendment) Act 2017- Pros and Cons, IAS Express, (23/03/2020 13:!5),
https://www.iasexpress.net/maternity-benefit-amendment-act-2017/.
6
Richa Jhanwar supra note 3 at 5.
 women during the period of child birth. It has amended the provisions related to the duration and
applicability of maternity leave and other facilities.

A. Key features:

a. Applicability of the Act: As per Sec 2 of the Act, the Act is applicable to those women
employed in factories, mines and including every shops or commercial establishments employing
10 or more employees.

B. Salient features:

i. It enhanced the duration of paid maternity leave available for women employees from 12 weeks
to 26 weeks.

ii. However, for those women who are expecting after having 2 children, the duration of the leave
remains unaltered at 12 weeks.

iii. It extended the benefits to the adoptive and commissioning mothers by providing them 12 weeks
of maternity leave from the date of adoption. Note: The commissioning mother has been defined
as biological mother who uses her egg to create an embryo planted in any other woman or
surrogate mother.

iv. The paid maternity leave can be availed 8 weeks before the expected date of delivery. Before the
amendment, it was 6 weeks. Remaining 18 weeks can be availed post childbirth.

v. The Act has introduced an enabling provision relating to ‘work from home’ that can be exercised
after the expiry of 26 weeks leave period. Depending upon the nature of work, a woman can
avail of this provision on such terms that are mutually agreed with the employer.

vi. The amended Act has mandated a crèche facility for every establishment employing 50 or more
employees. The women employees should be permitted to visit the facility 4 times during the
day.
vii. The amended Act makes it compulsory for employers to educate women about the maternity
benefits available to them at the time of appointment.7

V. Landmark cases:
 Anshu Rani v. State of U.P. 8: the Petitioner prayed for directing the Respondent District Basic
Education Officer to grant her maternity leave with honorarium. The Respondent authority in the
case had granted the Petitioner maternity leave for 90 days instead of 180 days. Aggrieved by the
7
Koneru Anuradha supra note 7 at 6.
8
Case :- WRIT - A No. - 3486 of 2019.
same, the Petitioner filed the writ petition wherein the Respondent has averred that maternity
leave was rightly granted only for a period of 90 days in view of the Government Orders dated
20.11.2017 and 3.1.2018.

The Petitioner on the other hand has contended that she is entitled for the benefit of the provisions
contained in the Maternity Benefit Act, 1961 as has been amended by Maternity Benefit
(Amendment) Act, 2017 and in view of the amendment any order contrary to the same is liable
to be ignored.

Bench’s Verdict

The High Court of Allahabad allowed the petition while directing the Respondent authority to
grant 180 days of maternity leave and made the following observations in the case:

While referring to the Amendment Act of 2017, the High Court noted that the decision of the
Central Government has been adopted by the State of U.P. for its employees vide Government
Order dated 08.12.2008 and 24.03.2009 and perusal of the said orders makes it clear that the
State Government has adopted same policy as is enforced by the Central Government for grant
of Maternity Leave as well as Child Care Leave to its employees.

While elucidating on the need of maternity leave, the Court opined that maternity leave is a social
insurance given for maternal and child health and family support. That from perusal of different
provisions of the Maternity Benefit Act, 1961 as amended in the year 2017 as well as the policy
of the Central Government to grant child care leave and Government orders issued by the State
Governments in the State of U.P. adopting the same for its female employees, the female
employees of the State of U.P. are entitled for the benefits of the maternity leave as contained
in the  Maternity Benefit Act, 1961 as amended by the Maternity Benefit (Amendment) Act,
2017.9

9
Women Employee Entitled to Maternity Leave Irrespective of Nature of Employment- Allahabad HC,

Vakilnol.com, (23/03/2020 13:15), https://www.vakilno1.com/legal-news/women-employee-entitled-to-maternity-

leave-irrespective-of-nature-of-employment.html.
  Dr. Rachna Chaurasiya vs State Of U.P. And 2 Others10 
The petitioner was appointed on the post of lecturer in a medical college at Jhansi on 24.02.2009.
The appointment of the petitioner was initially for a pd of 1 yr. Later on, she was promoted to the
post of Asstt. Professor. In the year 2016, the petitioner gave birth to child and was granted
maternity leave for a period of 6 months from 03.05.2016 to 29.10.2016. After availing of the
said leave, the petitioner joined the college on 04.11.2016. The petitioner’s husband was also a
doctor by profession and was working on the post of Associate Prof. in the same medical college.
Finding that the child was not comfortable with the maid, she applied for child care leave for a
period of 3 months but the said application was rejected on the ground that the petitioner being a
contractual employee was not entitled for grant of child care leave. The petitioner approached the
High Court by means of the present writ petition. It was contended on behalf of the petitioner
that the Central Gov. took a decision on 11.09.2008 about the enhancement of the quantum of
maternity leave and introduction of child care leave to the central government employees. On the
basis of the fact, the petitioner urged that she was entitled to the benefit of grant of child care
leave. The High Court referred to Article 15(3) of the Constitution of India, DPSP, also referred
to the relevant provisions of the Maternity Benefits Act and observed that the said Act as well as
the rules of the Gov. orders providing for grant of maternity benefits and child care leave are
applicable to female employees irrespective of their nature of employment whether permanent,
temporary or contractual. The State Government to grant maternity leave to all female with full
pay of 180 days, irrespective of nature of employment, i.e., permanent, temporary/ad hoc or
contractual basis.

VI. Impact on Women Employment:

As we have seen the positive impact that how does it increase the women’s participation, now
we will see negative impacts:
 Drawbacks of this Act:
1. Male Employees Preference: The increase in maternity leave could also have an adverse impact
on job opportunities for women. The provision could also affect the competitiveness of industries
that mainly employ women workers.
2. Lack of Clarity: There is no clarity with respect to time period up to which the crèche facility
could be extended to the employee and also regarding the availability, extent of nursing breaks.

10
Civil Misc. Writ Petition No. 24627 of 2017.
 3. Applicability to unorganized Sector: The Unorganized Workers’ Social Security Act, 2008
defines unorganized workers are those who are home-based, self-employed in an entity having
less than 10 employees. The Act did not clarify about this Plus 90 percentage of the working
women are employed in unorganized sector in India.
4. Lack of enough provisions to meet the breastfeeding guidelines:
5. Silent on paternity benefits: The International labor Organization has recognized men’s right to
parenthood. But the act is silent on this issue.11
6. According to a survey by LocalCircles, almost 50% of SMEs and start-ups in India reported less
female hires over the last year. The survey, which gathered 8,500 responses from SMEs, startups
and entrepreneurs, found the financial strains of maternity leave were simply too much for many
smaller organizations to take on. 33% said they didn’t hire women at all, while 16% said they
had hired fewer women than in the previous year. A third said they had hired the same number of
women as in the previous year, while 18% even said they had made more women hires. When
asked what the ideal leave should be from an SME and startup perspective, 37% said three-
months paid leave, 6% said one-month paid leave and 6% said there should be no maternity
leave allowance,
7. IndiaSpend reported a year ago rising income levels and stability in families are disincentivising
women from joining the labour force. Only 27% Indian women are in the labour force–the
lowest among BRICS countries; among G-20 countries, it is better only than Saudi Arabia, it
said.12
VII. Recommendations and suggestions:
1. Funding:
 The government should create a corpus fund to partially sponsor the costs to be incurred by the
employer to provide maternity benefits.
 In this regard, the Pan-India expansion of Maternity Benefit Programme (MBP) of the Ministry
of Women & Child Development is a welcome step. The scheme is applicable to all pregnant

11
Santosh Kumar supra note 5 at 9.

12
Maia Jenkins, Small firms in India admit to hiring fewer women because of maternity leave costs: Survey,

People matters, (23/03/2020 13:!5), https://www.peoplematters.in/article/benefits-and-rewards/small-firms-in-india-

admit-to-hiring-fewer-woman-because-of-maternity-leave-costs-survey-24966.
 women and lactating mothers in regular employment with the Central Government or State
Governments and in Public Sector Undertakings.
2. Breastfeeding:

 The government must find innovative and cost-effective ways to make sure that working women
are not forced to discontinue breastfeeding.

 Employers should provide a clean and priv. pumping room for breastfeeding purposes.

3. Paternity benefits:
 The Gov. should come up with schemes regarding paternity benefits to achieve the objective of a
gender-balanced approach to parenthood.13

VIII. Conclusion:
Motherhood was one of the most important and challenging jobs in the world and all religions
have held the role of a mother as an esteemed position. The court concluded that motherhood
was an inherent and integral part of a woman’s dignity, which is protected by Article 21 of the
Constitution. At the same time, the government should address the above shortcomings and
should work towards ensuring that the law provides equal opportunities to women at work place.
This research paper overviewed an analysis of Maternity Benefit Act, 1961 and how 2017 Act
came into force with landmark case laws. Lastly, this research paper has analyzed about the
impact on women employment.

IX. Bibliography:
13
Santosh Kumar supra note 5 at 10.
1. Vandana Ramnani, 15 suggestions to make RERA more effective, Money Control, (23/08/2019,
14:15),https://www.moneycontrol.com/news/business/real-estate/15-suggestions-to-make-rera-
more-effective-2555563.html.

2. Richa Jhanwar, The Need for Maternity Benefits of Women employee, Lawctopus,(23/03/2020,
13:!5), https://www.lawctopus.com/academike/the-need-for-maternity-benefits-for-women-
employee/

3. Santosh Kumar, Maternity Benefit (Amendment) Act 2017- Pros and Cons, IAS Express,
(23/03/2020 13:!5), https://www.iasexpress.net/maternity-benefit-amendment-act-2017/

4. Yogesh Singh, Maternity Benefit Act, 2016- What’s new in it?, Jagran Josh (23/03/2020, 13:!5),
https://www.jagranjosh.com/current-affairs/maternity-benefit-bill-2016-whats-new-in-it-
1489579621-1

5. Koneru Anuradha, Maternity Benefit (Amendment) Act, 2017 A big and Positive Step towards
improvement in securing the employment rights to women, Legal Service India, (23/03/2020
13:!5), http://www.legalserviceindia.com/legal/article-176-the-maternity-benefit-amendment-act-
2017-a-big-and-positive-step-towards-improvement-in-securing-the-employment-rights-of-
women.html
6. Cyril Amarchand Mangaldas, India: Analysis Of Certain Aspects Of The Maternity Benefit
(Amendment) Act, 2016, Mondaq, (23/03/2020 13:!5),
https://www.mondaq.com/india/Employment-and-HR/623550/Analysis-Of-Certain-Aspects-Of-
The-Maternity-Benefit-Amendment-Act-2016

7. Women Employee Entitled to Maternity Leave Irrespective of Nature of Employment-

Allahabad HC, Vakilnol.com, (23/03/2020 13:!5), https://www.vakilno1.com/legal-news/women-
employee-entitled-to-maternity-leave-irrespective-of-nature-of-employment.html

8. Maia Jenkins, Small firms in India admit to hiring fewer women because of maternity
leave costs: Survey, People matters, (23/03/2020 13:!5),
https://www.peoplematters.in/article/benefits-and-rewards/small-firms-in-india-admit-to-hiring-
fewer-woman-because-of-maternity-leave-costs-survey-24966

9. Shashi Bala, Implementation of Maternity Benefit Act, (23/03/2020 13:!5),

https://vvgnli.gov.in/sites/default/files/2012-099.pdf