The objective of maternity benefits is to safeguard the dignity of motherhood by providing proper care-consideration to the child and mother when she is not able to fulfil her duties due to health reasons.
I. Introduction
“War is to man what maternity is to a woman. From a philosophical and doctrinal viewpoint, I do not believe in perpetual peace.” – Benito Mussolini
India is that the second-largest country in the world in terms of population, but it’s still within the class of developing countries, one of the most important reasons for which is the inequality in operating conditions between men and women. Trade unions were still in their infancy and the working conditions of ladies and kids in the facility were terribly important. After the regulation of sure laws, akin to the Labor Dispute Act of 1947, things began to be largely regulated, but what regarding the precise conditions women face, such as childbirth, before, during, and after childbirth? In 1961, the Maternity Benefits Act 1961, was implemented for the protection of women’s rights and interests, the act has gone through some amendments, made according to the changing needs of the society.
To regulate the employment of women before, during, and after childbirth and to provide a variety of benefits. This law covers all of India. Before the words “except in the case of Jammu and Kashmir” existed and were later released. The basic premise of this action is to create social justice for women workers of various works including those covered in the Employment Insurance Act, 1948. The main purpose is to protect the health of the mother, provide certain benefits and the safety of the child, and regulate the work of women workers in certain establishments for periods before and after childbirth.
II. Maternity Benefit: Indian Scenario
Social stigma A maternity benefit is entitled to every woman and the employer shall be liable for the payment of maternity benefit which is to be given to her at the rate of the daily wage average for the period she was physically absent from the job. Post maternity women employees rate has been decreasing day by day and it is important to realize the significance of women participation which has increased in recent decades, which includes young, middle-aged, and old employees and thus because of this increasing number it is natural to safeguard their health.
India is therefore aiming to create more enhanced gender-friendly labour opportunities and work environments. The fundamental aim of this law is to preserve the respect, dignity of the “Motherhood” which keeps the human race alive and to provide support in health and complete safety of child and mother, as otherwise she will not able to perform her duty and could lose her job and source of income.
Economic dependence on women is what makes society today so that evils can be removed and women can take active roles for which government must aid. Women face discrimination mainly economically and socially resulting from their biological role in nature. To curb these situations there is a strict need for maternity benefits to provide them empowerment so that they may become self-reliant, economically independent because historically maternity has been treated as a kind of disability. It is important for the law to remove these inequalities so that the section of the population who is half the working segment of our society, can be uplifted and justice, equality, and fairness be served to all.
To become a mother is most natural phenomena and the employer has to be considerate and must realize that physical difficulties with such pregnant working females will affect their efficacy for that period and will have the struggle to perform her duties at the workplace while carrying a baby inside a womb or rearing it up after birth. And due to this reason, many employers tend to terminate the services of women when they found that pregnancy distracted women from work and women had to leave her job without payment when they actually need more financial stability for medical purposes and other basic necessities of child and mother. And if they had to keep working they were hit with heavy strain, exhaustion, and exertion which is injurious to both the life.
III. Maternity Benefit: Legal Framework
Indian Constitution
Women are provided rights and benefits under these Provisions- Article 14 provides the Right to equality in law, Article 15 provides the Right to social equality, under Article 16 Right to social equality in employment is mentioned, Article 21 Right to life and dignity. Under Directive Principles of State Policy the Articles 39 (a) provides“Right to adequate means of livelihood, Article 39 (d) Right to equal pay for equal work, Article 39 (e) Right that the health and strength of workers both men and women are not exploited and abused, Article 42 provides Right to just and humane conditions of work and maternity relief and under Article 46 Right to improvement in employment opportunities and conditions of the working women is provided[1].
A milestone in this regard is given in a landmark judgment.[2]. In this case, discrimination was done between the stewardesses and the male pursers who were part of the same crew and cabin. One of the three issues was that Air India Corporation Act’s pregnancy clause stated that any of the air hostesses gets pregnant, they are to terminate their job immediately. The constitutional validity of this clause was challenged, for which the Supreme Court ruled that it is grossly unethical and in violation and infringement of rights under Articles 14 and 15. The ability to work after pregnancy is a personal matter of the air hostess, that it shouldn’t be coerced.
Maternity Benefit Act 1961
According to section 2 of the said Act, it will apply to all establishments including plantation, shops where according to law 10 or more than 10 purple are working, mines or factories, or any other organization or company. The act does have a proviso clause where the government can add any class or category of establishments like agriculture, commercial, or otherwise within the boundaries of this act, as it deems necessary. In a landmark case [3] the court held that the provisions of this act shall be entitled to maternity leave and benefit not only to regularly employed workers but even to females who are engaged in casual or muster roll basis on a daily wage. In another case [4] the court said that to grant maternity leave of 180 days to all female employees state government and grant 730 days of childcare to minor Childs.
Section 3 of the law includes definitions of various appropriate government, maternity benefits, establishment, salaries, abortion, etc. Also according to section 4, she’s going to not work for 1 month before her birth or for an amount of six weeks if the type of labour is stressful, like 6 weeks after her delivery—childbirth, medical termination, physiological state, or miscarriage.
Section 5 (1) states that maternal benefits are a benefit that each female should receive and that every employer is liable for the average daily wage rate on which she was absent, which will be the wage which she was receiving immediately 3 months before her absence, which again would come under the authority of Minimum Wages Act 1948. The exception is that she would not be entitled to this if she has not worked in the said establishment in the last 12 months or at least 80 days—which includes the woman’s laid-off or any holiday declared by law. But then if the woman haves more than two or two children that this time period will be of just 12 weeks. If she dies during this period then the benefit will be given up only till that date and not after it and if she dies while childbirth or just after it then the child will get the benefit for the entire duration and this benefit will last only till the child is alive.
When adopting a child or commissioning mother[5] of below age 3 months, the woman is entitled to a benefit of 12 weeks, the term can be mutually agreed by the parties to work from home. In a leading case [6] the court signified the definition of “week” as a cycle of 7 days including Sunday. In another leading case [7] the issue was to include half days in calculating 160 days for determining maternity benefit arises where the court held that according to section 5 the period of lay-off shall also be included, during which period she is not expected to work and actual work for 160 days cannot be put on as a condition precedent for claiming the benefit. A woman can have a maximum of 26 weeks of maternity benefit; which includes 8 weeks prior to and including the day of delivery or miscarriage as provided by the new amendment act of 2017.
Under section 6 if a woman desires to claim the benefit then she will have to provide a written notice to her employer stating the time for which she will be unavailable and the amount to which she is entitled. She will be needed to provide a name for the nominee—which will be entitled to the benefit or any other amount, provide a notice when she conceives a baby, failure to do so will make her disentitled for the claim and this will depend according to the discretion go, inspector. She will also have to state that she will not be working in any other establishment during this period in the notice.
Section 7 says that if no nomination states then the legal representative of the woman will be entitled to the benefit. Section 8 provides that the employer is liable to proceed pre-natal confinement and post-natal care to the pregnant woman, failure to do so the woman will receive the damages of 1000/- which the central government can revise and increase every three years by notifying in the Official Gazette of India. Since 2011 the amount of medical bonus has increased to 3500 INR by the central government.
Under section 9 a woman is entitled to a leave and maternity benefit for about 6 weeks if she produces proof of miscarriages or medical termination of pregnancy and 2 weeks in case of tubectomy. Section 10 provides if a woman is suffering any illness or disease due to premature childbirth delivery, miscarriages, tubectomy, pregnancy, etc. then she is entitled to have a leave for 1 month with the maternity benefits in addition to the previously mentioned 12 weeks period.
Section 11A was added through the 2017 amendment act which talks about a crèche facility meaning a nursery for the care of preschool kids while their parents work. This clause puts this obligation to establish such facility on employer where there are 50 or more than 50 employees within the prescribed distance, to which workers are allowed to visit 4 times a day. Under section 12 the acts put an obligation on the employer not to dismiss or discharge a lady taking benefit under this act or give any sorts of notice for these matters and if done she is entitled to a medical bonus and maternity benefit and she should report this to any prescribed authority within 60 days. But if she is being let go because of her own gross misconduct then this obligation wears down from the head of the employer.
According to section 14, for this an inspector can be appointed by the authority who shall be a public servant according to section 16, who can enter the work premises of concerned women at an inappropriate time to examine, report, register, record and inspect any required information from the employer about the details of the women. A proviso is there that no persons shall be coerced to provide any answers or evidence.
Section 17 discusses the power of an inspector to direct any payments and the other section discusses the maintenance of records and registers or any act exhibited by the employer. If without any reasonable grounds the employer fails to abide by any of the upper given sections of this act, then he shall be liable for a fine of 5000INR and one year of imprisonment.
Employees State Insurance Act, 1948
Apart from the upper given laws, maternity benefits are also provided under the Employees State Insurance Act, 1948.” Related benefits are mentioned under Section 46, Section 50, and Section 56 of the said Act, and the rates and period of these benefits will be as provided by the Central Government. Under Section 73, the act puts a duty on the employer of not dismissing or punishing any employee during the period of maternity benefit and no notice of dismissal or discharge will be valid in the period specified for maternity benefit.
Though Maternity benefits are also under the purview of “Employees State Insurance Act, 1948”. However, the conflict between the two acts is averted by Section 2 of the Maternity Benefit Act, 1961 which states the application of the said act. Section 2 (2) clearly states the condition that apart from Section 5A and 5B this Act won’t apply to any factory or establishment to which provisions of Employees’ State Insurance Act, 1948 applies.
Central Civil Services Leave Rules: Rule 43 of the Central Civil Services Leave Rules, 1972[8] states that a leave of 180 days with the same conditions.
IV. Conclusion
The objective of maternity benefits is to safeguard the dignity of motherhood by providing proper care—consideration to the child and mother when she is not able to fulfil her duties due to health reasons. The case of [9] discussed the motherhood theory in detail. This benefit aims to provide Quality time to the mother without worrying about losing her job and providing financial stability throughout this next phase of life.
There are certain drawbacks of these legislations such as these do not cover working women of an organized sector, not providing better clarity on crèche facility distance and if the employer has to be 26 weeks for paid absence then why he would not refrain from hiring women employees altogether reduce such additional costs. The new amendment will ensure full maternal care during the full bloom period that will encourage more women to join the jobs in the organized sector which will in-turn boost the financial independence of women.
The phenomenon of motherhood is the most important and beautiful thing in the world which should not be exploited at any cost. Any such discrimination and exploitation are inhumane and against every basic fundamental and basic human right which is both morally and ethically wrong. Every necessary step should be taken to safeguard such issues.
Bibliography & References
- Maternity Benefit Act, 1961
- The Maternity Benefit Act, 1961 and Maternity Benefit (Amendment) Act, 2017 and Creche Facility
- CRÈCHE facility by Employers in India: Rules Notified for Bangalore
- Creche Facility Under Maternity Benefit Amendment Act, 2017
- Indian Maternity Benefit (Amendment) Act, 2017
- Maternity Benefit Act, 1961 (MBA
[1] The Constitution of India, 1950′
[2] Air India v. Nargesh Mirza, 1981 AIR 1829
[3] Municipal Corporation of Delhi v. Female Workers (Muster Roll) Special Leave Petition (civil) 12797 of 1998
[4] Dr. Rachna Chaurasiya v. State of U.P. and others, Civil Misc. Writ Petition No. 24627 of 2017
[5] “A commissioning mother is defined as “biological mother who uses her egg to create an embryo implanted in any other woman” (the woman who gives birth to the child is called a host or surrogate mother).”
[6] B. Shah v. Presiding Officer, Labour Court Coimbatore 1978 AIR 12, 1978 SCR (1) 701
[7] Ram Bahadur Thakur Pvt. Ltd. v. Chief Inspector of Plantations (1989) IILLJ 20 Ker
[8] http://www.bareactslive.com/indexch.html
[9] U. Ishwarya v. Director of Medical Education, Directorate of Medical Education, and Others, W.A.No.374 of 2018 and C.M.P.No.3128 of 2018
