NATIONAL LAW UNIVERSITY, ODISHA

A PROJECT WORK
ON
LABOUR LAW II

TOPIC: MATERNITY BENEFIT IN INDIA

SUBMITTED BY:
SAMPARK SAMPAD (2019/B.A.LL.B./092)
SHIBA PRASADA SARANGI (2019/B.A.LL.B./100)

SUBMITTED TO:

DR. SOHINI MAHAPATRA

ASSISTANT PROFESSOR OF LAW
TABLE OF CONTENT
 RESEARCH QUESTION

1. What are the present conditions and requirements to avail the benefits under the
Maternity Benefit Act?
2. What are the avenues under the said act that need to be reconsidered to make it more
suitable for public delivery?

RESEARCH OBJECTIVE

1. To study the present conditions and requirements to avail the benefits under the
Maternity Benefit Act.
2. To highlight the avenues under the said act that need to be reconsidered to make it
more suitable for public delivery.

INTRODUCTION

Pregnancy and childbirth can be physically and emotionally demanding, and the period of
postpartum recovery can take several weeks or months. During this time, new mothers need
time to bond with their babies, recover from childbirth, and adjust to their new roles as
parents. Maternity benefits help to alleviate the financial stress of taking time off work during
this period, which allows mothers to prioritize their health and the health of their new-born.
Maternity benefits provide financial support and job protection for new mothers during the
crucial period of pregnancy, childbirth, and early parenting.1

Maternity benefits can help to prevent discrimination against pregnant women in the
workplace.2 Without these protections, some employers may be reluctant to hire or promote
women who are of childbearing age, or may push women out of their jobs once they become
pregnant. Maternity benefits help to ensure that women are not penalized for starting a
family, and can continue to pursue their careers without fear of reprisal. Maternity benefits
are an essential component of a comprehensive social welfare system, as they provide
important support for new mothers and their families, while also promoting gender equality
in the workplace.

1
Sajeev U, ‘Can’t Deny Maternity Benefits On Technicalities, Woman Cannot Be Forced To Swing Between
Motherhood And Employment: Madras High Court’ (16 January 2023) <https://www.livelaw.in/news-
updates/madras-high-court-welfare-schemes-cannot-be-deprived-on-mere-technicalities-219041> accessed 15
March 2023
2
Jogvanshi A, ‘Manupatra, 25th May 2022’ <https://articles.manupatra.com/article-details/Rights-of-the-
Working-Woman-as-a-Mother-An-Analysis> accessed 15 March 2023.
 About the Maternity Benefit Act in India

In India, maternity benefits are provided under the Maternity Benefit Act of 1961, which
mandates that eligible women employees are entitled to certain benefits during their
pregnancy and after childbirth.

Under this law, women who work in establishments with 10 or more employees are entitled
to 26 weeks of paid maternity leave, which can be taken in one or more spells. 3 The leave can
be taken up to eight weeks before the expected date of delivery, and the remaining weeks can
be taken after delivery.4

In addition to paid maternity leave, women are also entitled to receive maternity benefits,
which include a cash payment of an amount that is at least equivalent to the wages for the
period of maternity leave. This payment is meant to help cover the costs of medical expenses
and other expenses related to childbirth.

The law also mandates that employers must provide women with the option to work from
home after returning from maternity leave, if the nature of their work allows for it. This
provision is meant to help women balance the demands of work and motherhood.

Applicability and Eligibility for Maternity Benefit in India

Maternity benefit is available to women in India under the Maternity Benefit Act, 1961. The
Act applies to women who work in factories, mines, plantations, shops, and establishments
with 10 or more employees. The eligibility criteria for maternity benefit in India are as
follows:

1. The woman should have worked for the employer for at least 80 days in the 12
months preceding her expected date of delivery (mentioned under Section 5(2) of the
Maternity Benefit Act, 1961 and Section 60(2) of the Code on Social Security 2020)

3
Borate N, ‘The Benefits Women Are Entitled to and the Rights They Can Claim under Maternity’ (mint, 12
May 2019) <https://www.livemint.com/money/personal-finance/the-benefits-women-are-entitled-to-and-the-
rights-they-can-claim-under-maternity-1557655754106.html> accessed 15 March 2023.
4
‘Maternity Leave Policy in India: Eligibility and Benefit Rules’ (myHQ Digest, 8 November 2022)
<https://digest.myhq.in/maternity-leave-policy/> accessed 15 March 2023.
 2. The benefit is available for up to 26 weeks, which can be taken before and after
delivery. If the woman has already had two or more children, the benefit is available
for up to 12 weeks.5

3. The woman must give notice to her employer at least six weeks before her expected
delivery date.

4. The employer must provide the benefit in the form of paid leave.

5. The amount of maternity benefit should be at least equivalent to the woman's average
daily wage for the period of her absence.6

6. In case of miscarriage or medical termination of pregnancy, the woman is entitled to

six weeks of paid leave.

Key Amendments and additional benefitintroduced under Maternity Benefit Act in

India

The Maternity (Amendment) Bill, 2017, which modifies the Maternity Benefit Act, 1961,
was approved by the Rajya Sabha and Lok Sabha on August 11, 2016 and March 9, 2017,
respectively. On March 27, 2017, the President of India gave his approval to the bill.7

1. Increased Paid Maternity Leave: According to the Maternity Benefit Amendment

Act, the length of paid maternity leave for women employees has been extended from
of the previous 12 weeks to 26 weeks. The very first 2 children are covered by this
longer leave term, and the third and subsequent children are covered by a 12-week
period of leave (i.e. 6 weeks pre and 6 weeks post expected date of delivery).8
2. Maternity leave for adopted and commissioned moms: From the date of adoption,
mothers adopting infants less than 3 months are entitled to a 12-week maternity leave.

5
Preetha Soman, ‘Maternity Leave In India Increased To Six Months - Employee Benefits & Compensation -
India’ <https://www.mondaq.com/india/employee-benefits--compensation/583462/maternity-leave-in-india-
increased-to-six-months> accessed 15 March 2023.
6
‘Maternity and Paternity Benefits: Provisions for Government Employees’ (WageIndicator Foundation)
<https://paycheck.in/career-tips/women-paycheck/women-legislation/maternity-and-paternity> accessed 15
March 2023.
7
‘The Maternity Benefit (Amendment) Act, 2017 - Employee Benefits & Compensation - India’
<https://www.mondaq.com/india/employee-benefits--compensation/584500/the-maternity-benefit-amendment-
act-2017> accessed 15 March 2023.
8
Upadhyay S, ‘“Maternity Act” Doesn’t Provide For Time Difference Between 1st & 2nd Child For Grant Of
Maternity Benefits: Allahabad HC Grants Relief To Woman’ (2 September 2022)
<https://www.livelaw.in/news-updates/maternity-act-doesnt-provide-time-difference-1st-2nd-child-for-grant-of-
maternity-benefits-allahabad-hc-grants-relief-woman-208181> accessed 15 March 2023
 The biological mother who utilizes her egg to produce an embryo that is implanted in
another woman is referred to as the commissioning mother. In accordance with the
Surrogacy (Regulation) Bill of 2019, the commissioning mother who chooses to hire a
surrogate to bear the baby is entitled to a 12-week maternity benefit.
3. Working from Home Choice —- 2017 amendment also made it possible for women
who cannot take maternity leave owing to the nature of their employment to work
from their homes. If the female's line of work allows it, the employer may authorise
her to remote employment; this option is permitted regardless of whether the 26-week
leave expires (stated in Section 5(5) of the Maternity Benefit Act of 1961 and Section
60(5) of the Code on Social Security, 2020).9
4. Creche facility – Every firm with 50 or more employees must provide a creche
facility under the Maternity Benefit Amendment Act. The creche would've been open
to female staff four times each day (mentioned under Section 11A of Maternity
Benefit Act, 1961 and Section 67 of Code on Social Security, 2020). 500 metres or
less must separate the creche from the institution. Employers are required by the
Maternity Benefit Act of 1961 and Section 67(2) of the Social Security Act of 2020 to
provide information to women about the maternity advantages that are accessible for
them at the point of their recruitment.10

Under the MB Act, are maternity benefits available to contract employees?

In Dr. Mandeep Kaur v. Union of India 2020 [C. W. P. no. 1400 of 2018, Himachal Pradesh
HC],11 the petitioner, a medical officer engaged contractual agreement at an Ex-Servicemen
Contributory Health Scheme clinic, filed an application under the MB Act for maternity leave
in addition to other related advantages, such as continuity in service. The respondent denied
this on the basis that there wasn't a provision in her employment contract allowing for the
demand of maternity benefits.

According to the Himachal Pradesh High Court, every establishment with ten or more
employees must provide maternity coverage. The Court instructed the respondent to give the
petitioner the opportunity to "work remotely" with consensual understanding with the
9
‘Maternity Benefit Act Ruling – An Update - Employee Benefits & Compensation - India’
<https://www.mondaq.com/india/employee-benefits--compensation/1181882/maternity-benefit-act-ruling--an-
update> accessed 15 March 2023.
10
‘Creche Facility Under Maternity Benefit Amendment Act, 2017 - Employee Benefits & Compensation -
India’ <https://www.mondaq.com/india/employee-benefits--compensation/668308/creche-facility-under-
maternity-benefit-amendment-act-2017> accessed 15 March 2023.
11
Dr. Mandeep Kaur v. Union of India 2020 [C. W. P. no. 1400 of 2018, Himachal Pradesh HC]
employer after the 26 weeks of paid maternity leave have ended. This is among the
advantages that might be utilized.12

The Court noted that even though the complainant was engaged on a contractual basis,
rejection of the advantage of maternity leave will indeed constitute a violation with respect to
the beneficial purpose behind Article 21 in the Indian Constitution. The Courts apply the
Apex Court's ruling in Municipal Corporation of Delhi v/s Female Workers and Anr [2000
(3) (SCC) 224],13 in which the Apex Court had expressly mentioned that maternity leave be
made accessible to women employees as to if permanent, casual, or contractual.14

For maternity benefits, there is no difference between such a surrogate mother and a
biological mother.

In Sushma Devi v. State of Himachal Pradesh and Ors 2021 [CWP No. 4509 of 2020, HP
HC],15 the petitioner, who was employed on a contract basis at a government school,
requested maternity leave for surrogacy. However, the request was rejected because it was
unclear whether a mother could be granted maternity leave for surrogacy.16

According to the Himachal Pradesh High Court's interpretation of Rule 43 of the Central
Civil Services (Leave) Rules of 1972, the connection between a mother and her adopted
kid has been duly acknowledged by the National Government even now in cases of adoption.
The Court further noted that Article 42 of the Indian Constitution recognized the significance
of maternity benefits and the provision of paternity leave. Additionally, the Court stated that
it would be an "insult to womanhood and the ambition of a woman to nurture a kid produced
via surrogacy" to differentiate between such a mother who bears a child naturally and a
mother who does so. As a result, it was determined that mothers who gave birth via surrogacy
qualified for maternity benefits under the MB Act.

 Calculating maternity benefits payments

12
‘Maternity Benefit in India’ (Nyaaya) <https://nyaaya.org/guest-blog/maternity-benefit-in-india/> accessed 15
March 2023.

13
Municipal Corporation of Delhi v/s Female Workers and Anr [2000 (3) (SCC) 224]
14
Saxena A, ‘Denial Of Child Care Leave To A Govt Contractual Employee In Effect A Denial Of Rights Of
Child : Uttarakhand HC (FB)’ (26 July 2020) <https://www.livelaw.in/news-updates/denial-of-child-care-leave-
to-a-govt-contractual-employee-in-effect-a-denial-of-rights-of-child-uttarakhand-hc-fb-160517> accessed 15
March 2023
15
Sushma Devi v. State of Himachal Pradesh and Ors 2021 [CWP No. 4509 of 2020, HP HC]
16
Arora S, ‘An Overview of the Maternity Benefit Act.’ <https://www.khuranaandkhurana.com/2022/06/29/all-
about-maternity-benefit-act-1961/> accessed 15 March 2023.
In India, the company has a duty to cover the employee's maternity benefits. The legislation
raised the length of leave from 12 weeks to 26 weeks, thus significantly increased the
expense for the company. This can make employers reluctant to hire women. In Singapore, a
16-week holiday is granted, however the benefits are paid for using public money and shared
evenly between both the employer and the state. India must likewise enact a similar laws in
order to prevent employers from being hesitant to hire female employees.

Drawbacks

1. According to many social scientists, this change will encourage patriarchy because it
places practically all of the obligation for child care on mothers. The government really hasn't
declared any paternity leave.

2. Many private enterprises may refrain from hiring women who might be pregnant because
they will be required to offer them paid maternity leave for up to 26 weeks during that time.

3. The law won't help the majority of women who work in unorganised sectors like farming,
contract labour, etc.; instead, it's just going to benefit a small minority of women who work in
the organised sector.17

FORFEITURE

A woman fails to meet the eligibility criteria or violates any of the conditions laid down by
the Act, she may forfeit her right to receive maternity benefits. For instance, if a woman fails
to give notice of her pregnancy to her employer, she may forfeit her right to receive maternity
benefits. Similarly, if she returns to work before the end of her maternity leave without
obtaining the employer's prior approval, she may lose her right to receive the remaining
benefits.18

It is also important to note that the employer cannot terminate a woman's employment during
or on account of her maternity leave. If the employer does so, the woman is entitled to all the
benefits that she would have received if she had not been terminated, including maternity
benefits.
17
Kumar S, ‘Maternity Benefit (Amendment) Act 2017 - Features, Pros and Cons’ (IAS EXPRESS, 3 June 2019)
<https://www.iasexpress.net/maternity-benefit-amendment-act-2017/> accessed 15 March 2023
18
‘Maternity Benefits in India: For Whom, The Laws & Limitations – Matrnity’
<https://matrnity.com/maternity-benefits-in-india-for-whom-the-laws-limitations/> accessed 15 March 2023
 RECOMMENDATION

The 2017 Amendment has introduced several adjustments required to adapt to the evolving
global circumstances regarding this specific subject. Even if this amendment has gone a long
way in bringing about significant improvements in its field, significant failures may still be
noticed in Indian jurisprudence. The following are recommended as the immediate problems
that should be solved by this law:

The government could follow the example of nations like Singapore, France, Canada, Brazil,
and Australia in which the cost of enhanced maternity advantages is either split between the
employer, the government, and public funds, or is completely covered by public funds and
state welfare program, instead of putting the entire financial burden on the employers. There
must be some kind of system created to lessen the load on the business and encourage them
to employ many female employees.

Instead of providing maternity benefits, companies must be provided economic tax

incentives, at least in the beginning, to avoid holding them directly accountable for changes
in society. So that companies are not obligated to bear the cost of paying salaries while
maternity leave and obtaining the jobs performed on their part from other employees, even an
employee payroll tax might be investigated.

The government might also examine information showing that other family-friendly policies,
like paternity leave, promote the involvement of women in the labour sector. India's statutory
provisions need to tackle these issues in the modern world, where equality for women is a
priority in each and every area. The Act has put its emphasis on how much a child wants their
mother throughout their early years, but it has not properly considered how much a new- born
also requires a father. Because of this, it is crucial that now the Act also incorporate paternity
benefits and leave.
 CONCLUSION

Trying to take care of a small baby is a fundamental human right for both the mother and the
kid, so the Maternity Benefit Act, despite its judicial precedent and amendments,
encompasses the majority of the leaves and other advantages to the mothers-to-be to enable
and assist them raise their child(ren) in the absolutely crucial first few months after delivery.
The Maternity Benefit Act of 1961 and its 2017 Amendment were both a blessing and a curse
for the nation's economy. To ensure that now the country's workforce remains efficient and
gender neutral, the government has done its share to bring maternity rights in accordance
with global norms. It adequately protects maternal rights, women's rights, and the
fundamentals of safety and health.19

Maternity benefits in India have been a subject of significant attention and debate in recent
years. The Maternity Benefit Act of 1961 has undergone several amendments to increase the
duration of paid maternity leave and ensure that more women have access to these benefits.
However, there are still some challenges in implementing the law effectively, such as limited
awareness among women workers and the informal sector's exclusion.

It is necessary to address the social and cultural factors that limit women's access to paid
maternity leave and make them vulnerable to discrimination and harassment. The government
and private sector should work together to create a supportive work environment that allows
women to balance work and family responsibilities without any prejudice.20

Overall, maternity benefits are essential to support women's health, well-being, and economic
empowerment. The government must take concrete steps to ensure that these benefits reach
every woman worker, including those in the informal sector, to promote gender equality and
inclusive economic growth.

19
Thompson J, ‘What Are the Advantages and Disadvantages of Maternity Leave- IELTS Writing Task 2’
(IELTSMaterial.com, 2 December 2021) <https://ieltsmaterial.com/what-are-the-advantages-and-disadvantages-
of-maternity-leave/> accessed 15 March 2023
20
Plumber M, ‘“Work From Home” Under Maternity Benefit Act Can Be Availed Only If Nature Of Work
Permits So: Karnataka High Court Denies Relief To Woman’ (22 March 2022) <https://www.livelaw.in/news-
updates/karnataka-high-court-maternity-benefits-work-from-home-nature-of-work-194704> accessed 15 March
2023
 BIBLIOGRAPHY

ARTICLES AND INTERNET SOURCES

 Sajeev U, ‘Can’t Deny Maternity Benefits On Technicalities, Woman Cannot Be
Forced To Swing Between Motherhood And Employment: Madras High Court’ (16
January 2023) <https://www.livelaw.in/news-updates/madras-high-court-welfare-
schemes-cannot-be-deprived-on-mere-technicalities-219041> accessed 15 March
2023
 Jogvanshi A, ‘Manupatra, 25th May 2022’ <https://articles.manupatra.com/article-
details/Rights-of-the-Working-Woman-as-a-Mother-An-Analysis> accessed 15 March
2023.
 Borate N, ‘The Benefits Women Are Entitled to and the Rights They Can Claim under
Maternity’ (mint, 12 May 2019)
<https://www.livemint.com/money/personal-finance/the-benefits-women-are-entitled-
to-and-the-rights-they-can-claim-under-maternity-1557655754106.html> accessed
15 March 2023.
 ‘Maternity Leave Policy in India: Eligibility and Benefit Rules’ (myHQ Digest, 8
November 2022) <https://digest.myhq.in/maternity-leave-policy/> accessed 15
March 2023.
 Preetha Soman, ‘Maternity Leave In India Increased To Six Months - Employee
Benefits & Compensation - India’ <https://www.mondaq.com/india/employee-
benefits--compensation/583462/maternity-leave-in-india-increased-to-six-months>
accessed 15 March 2023.
 ‘Maternity and Paternity Benefits: Provisions for Government Employees’
(WageIndicator Foundation)
<https://paycheck.in/career-tips/women-paycheck/women-legislation/maternity-and-
paternity> accessed 15 March 2023.
 ‘The Maternity Benefit (Amendment) Act, 2017 - Employee Benefits & Compensation
- India’ <https://www.mondaq.com/india/employee-benefits--compensation/584500/
the-maternity-benefit-amendment-act-2017> accessed 15 March 2023.
 Upadhyay S, ‘“Maternity Act” Doesn’t Provide For Time Difference Between 1st &
2nd Child For Grant Of Maternity Benefits: Allahabad HC Grants Relief To Woman’
(2 September 2022) <https://www.livelaw.in/news-updates/maternity-act-doesnt-
 provide-time-difference-1st-2nd-child-for-grant-of-maternity-benefits-allahabad-hc-
grants-relief-woman-208181> accessed 15 March 2023
 ‘Maternity Benefit Act Ruling – An Update - Employee Benefits & Compensation -
India’ <https://www.mondaq.com/india/employee-benefits--compensation/1181882/
maternity-benefit-act-ruling--an-update> accessed 15 March 2023.
 ‘Creche Facility Under Maternity Benefit Amendment Act, 2017 - Employee Benefits
& Compensation - India’ <https://www.mondaq.com/india/employee-benefits--
compensation/668308/creche-facility-under-maternity-benefit-amendment-act-2017>
accessed 15 March 2023.
 Maternity Benefit in India’ (Nyaaya) <https://nyaaya.org/guest-blog/maternity-
benefit-in-india/> accessed 15 March 2023.
 Saxena A, ‘Denial Of Child Care Leave To A Govt Contractual Employee In Effect A
Denial Of Rights Of Child : Uttarakhand HC (FB)’ (26 July 2020)
<https://www.livelaw.in/news-updates/denial-of-child-care-leave-to-a-govt-
contractual-employee-in-effect-a-denial-of-rights-of-child-uttarakhand-hc-fb-
160517> accessed 15 March 2023
 Arora S, ‘An Overview of the Maternity Benefit Act.’
<https://www.khuranaandkhurana.com/2022/06/29/all-about-maternity-benefit-act-
1961/> accessed 15 March 2023.
 Kumar S, ‘Maternity Benefit (Amendment) Act 2017 - Features, Pros and Cons’ (IAS
EXPRESS, 3 June 2019) <https://www.iasexpress.net/maternity-benefit-amendment-
act-2017/> accessed 15 March 2023
CASE LAWS

 Dr. Mandeep Kaur v. Union of India 2020 [C. W. P. no. 1400 of 2018, Himachal
Pradesh HC]
 Sushma Devi v. State of Himachal Pradesh and Ors 2021 [CWP No. 4509 of 2020,
HP HC]
 Municipal Corporation of Delhi v/s Female Workers and Anr [2000 (3) (SCC) 224]