The Maternity Benefit Act, 1961

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.

Meaning of Maternity Benefit :

Maternity Benefit is a benefit given to the mothers-to-be or the mothers

of the newly born with fully paid leave from employment along with
other benefits before and after the delivery of the child, with a motive to
facilitate the women in taking care of the child.
The Maternity Benefit Act, 1961 (hereinafter referred to as ‘the Act’)
was defined to be ‘a beneficial piece of legislation and its object is to
ensure the security of tenure for the working woman’ in the case of Shri
Swami Vivekanand Shikshan Sansthechya Sevakanchi Sahakari
Patsanstha Maryadit v. Kumari Deepa Narayan Jadhav (2016).
The case of Mamta v. Employee State Insurance Corpn. (2014) held
that giving birth to and taking care of the child is covered under the
fundamental right of the child and the woman and hence the employer
shall be held liable to pay maternity benefits.

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.

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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
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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.

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 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.

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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.

APPLICABILITY
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Under the scope of Section 2(1)(a), the Act applies to all establishments
including:

 factories,
 plantations,
 mines,
 shops or establishments covered under the ambit of law having 10
or more than 10 employees. (As provided by the 2017 amendment)
This includes the private sector as well.

In the case of Thomas John Muthoot v. Labour Officer (2014) it was

held that a firm with only 3 employees will not be covered under the
Act.

 government organizations,
 organizations centered by the central government or
 an establishment wherein persons are employed for the exhibition
of equestrian, acrobatics, and other performances

NOTE: The Maternity benefit Act shall be applied to any and all

establishments having 10 or more than 10 employees.
ELIGIBILITY
In Section 5(2) of the Act, it is mentioned that a woman, to be eligible
for the maternity benefits under the Act, has to be employed in the
establishment for not less than 80 days in the twelve months
immediately preceding the expected delivery of the woman. (The period
has been reduced from 160 days to 80 days by the virtue of 2017
amendment)
(Note: This period of 80 days does not apply to any woman who has
immigrated to the state of Assam and was pregnant during the
immigration)

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The ambit Women employee covers all kinds of employment whether
direct or through agency or contracts.
In the case of Glem Brook Estate v. Plantation Office (2012), it was
held that even the daily wage workers are entitled to Maternity benefits
under the scope of the Act.
Maternity benefits and a fully paid leave cannot be denied to contractual
employees. This was the decision of the Hon’ble Central Administrative
Tribunal in the case of Anuradha Arya v. Govt. Girl Sr. School
(2017).

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.

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(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.

(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.

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(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.

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