The Maternity Benefit Act, 1961: Decoded

By | May 29, 2021
The Maternity Benefit Act

This article by Apoorva Goel is a comprehensive analysis of the important provisions of the Maternity Benefit Act, 1961.

I. Introduction

Nature has given women this wonderful gift of nurturing a life inside their womb and they should never face the challenge of choosing between their job and their child. Neither of them should suffer and thus, to keep a balance between both, the legislators of our country have enacted the Maternity Benefit Act back in 1961. This legislation was enacted for regulating the employment of women in certain establishments for a given period before and after childbirth and to provide women with maternity benefits and certain other benefits when they are out of employment due to their pregnancy. This Act repealed the Mines Maternity Benefit Act, 1941, and Maternity Benefit Act, 1929.

The object of providing maternity leave and benefits is to provide women with a healthy and safe delivery and to protect the dignity of motherhood by providing for the full maintenance of a woman and her child when she is absent from work.

This article will answer all the questions one has about the maternity benefits provided in our country and how women can plan their pregnancies while sustaining their jobs. This article also covers all the recent amendments made in 2017 and their defects. It is a comprehensive analysis of the important provisions of the Act.

In the famous case of Air India v. Nergesh Meerza,[i] the conditions that the air hostess will retire from service if they get pregnant were held to be “grossly unethical” and also compelling to terminate services if a woman becomes pregnant, would amount to prohibit her not to have any children. The Court also observed that Pregnancy is not a disability but a natural outcome of marriage and it is unreasonable to forbid the same.

II. Scope of the Maternity Benefit Act

By the end of 1972, this Act became applicable to the whole of India. This act applies to all establishments employing 10 or more employees on any day in the preceding 12 months in an unorganized or organized sector.

Section 2 lays down that it applies to every establishment being a:

  • Factory,
  • mine,
  • or plantation
  • establishment belonging to the Government and
  • every establishment wherein persons are employed for the exhibition of equestrian, acrobatic, and other performances.[ii]

Further, the State Government can declare that all or any of the provisions of this Act shall apply to any other establishments with approval of the central government by giving a notice of not less than 2 months and notifying the same in the official gazette.

This Act does not apply to such factories or establishments where the Employees’ State Insurance Act, 1948 is applied; except in the case of Section 5A and 5B.

The Maternity Benefit Act is also applied to the private sector but is often overlooked. Pregnant women fear losing their jobs and thus fail to apply for maternity leave. Maternity benefit is a crucial right of every pregnant woman. A good establishment will always try to implement and ensure that women do not have to give up their careers to fulfil their role as a mother. Further, the private establishments can modify their terms for maternity leave and benefit but within the ambit of this Act.

III. Benefits a woman is entitled under the Act

Section 4 of the Act states that:

  1. No employer, knowing about a women’s pregnancy can employ her immediately for the next 6 weeks after she has given birth or she had a miscarriage or abortion.
  2. No pregnant woman even on her request will be required by her employer to do the undermentioned work for
  • one month immediately preceding six weeks, before the date of her expected delivery; For eg, if the woman’s expected date is 14 November 2021 then she cannot be employed to work in September.
  • or for any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.

She cannot be employed to do such work which is ;

  • of arduous nature
  • involves long hours of standing
  • likely to intervene with her pregnancy or the normal growth of the fetus
  • likely to cause her miscarriage
  • adversely affect her health.

The purpose of the above provision is to protect the unborn child and the mother. Further, we can infer that neither the employer can ask the pregnant woman to work nor the pregnant employee on her request asks the employer to give her such work. Thus, during such a period the employer has to help his pregnant employee financially by giving maternity benefits.

In the case of MCD v. Female Workers, temporary female employees claimed that they should also be entitled to maternity benefits. The court held that as per Articles 39 and 42 of the Indian Constitution woman cannot be compelled to undertake hard labour at the time of advanced pregnancy as it would be detrimental to her health and also to the health of the child. Thus, she would be entitled to maternity leave for certain periods before and after delivery.

IV. Conditions for eligibility to avail of the maternity benefit under Section 5

  1. Every pregnant working woman is entitled to the payment of maternity benefits at the rate of the average daily wage. This wage is given for the period of her actual absence immediately before the day of her delivery including the delivery day and for a period immediately following that day. Average daily wage =Amount earned in three months /No. of days in 3 months.
    For eg. If a woman earns Rs.30,000/- per month then in that case her Average daily wage will be = 90,000/92=978 approx. The maximum time for which she will get maternity benefit is 26 weeks i.e 182 days according to the 2017 Amendment. Thus, she will get a maternity benefit of Rs. 1,77,996. One must keep in mind the minimum rate of wage is the rate fixed or revised under the Minimum Wages Act, 1948, or ten rupees, whichever is the highest while calculating the average daily wage.
  2. To claim maternity benefit, a woman is required to work for not less than 80 days in twelve months immediately preceding the date of her expected delivery in the establishment. A woman who has immigrated into the State of Assam and was pregnant at the time of the immigration will not fall under this provision. The days for which she has been laid-off or was on a holiday declared to be a holiday with a wage by any law during twelve months immediately preceding the date of her expected delivery shall be taken into account while calculating the days on which a woman has worked in the establishment.
    In the case of Shah v. Presiding Officer, Labour Court, Coimbatore, and Ors the Apex Court ruled that Even Sundays must also be included and read in light of Article 42 which states that the Constitution was intended to enable the woman worker not only her subsistence but also to make up her lost energy, nurse her child, and to maintain the level of her previous efficiency and output.
  3. Before the 2017 amendment, it was twelve weeks but now the maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks.
  4. The Twenty-six weeks will be calculated from the date when she absents herself from work. She can take maternity leave for 8 weeks before the expected delivery date and the remaining 18 weeks of leave can be taken post-childbirth. But one can also take the full 26 weeks after delivery.
  5. For women already having 2 children and are expecting the third time the duration of paid maternity leave shall be 12 weeks i.e., 6 weeks pre and 6 weeks post-expected date of delivery. The Madras High Court in one of its judgment held that “when a woman delivers twins it amounts to two deliveries and not one act as they are delivered one after another, and their age and elderly status is also determined by their time of arrivals”[iii]. Thus, the woman is entitled to avail of maternity leave only for her first two deliveries.
  6. Adoptive mothers and commissioning mothers as well are covered under the amendment Act,2017; as it provides that every woman who adopts a child shall be entitled o 12 weeks of maternity leave from the date she adopted a child who is below the age of three months.
  7. There can be various circumstances that can occur on the date of delivery:
  • If both of them survive them the whole 26-week maternity benefit will be provided.
  • If a woman survives and the child dies then also she will get the full maternity benefit.
  • If the women die and the child survives then also the full the maternity benefit
  • If both of them died then the employer will provide maternity benefits up to the date of death and including the day of death.
  • If the woman dies and the child survives but later he also dies then the employer will provide the maternity benefit till the date of the child’s death.

Further, according to section 7 if a woman is entitled to maternity benefit dies before receiving such benefit then such amount shall be paid to the nominee or her legal representative.

V. Requirement of notice under Section 6

  • A written notice is required to be given by the pregnant woman to the employer stating that her maternity benefit and any other amount may be paid to her or the nominee and she will not work for the said period.
  • She must state the date from which she will be absent from work and the date should not be earlier than Eight weeks from the date of her expected delivery.
  • If the woman has not given such notice when she was pregnant can give it as soon as possible after delivery. Failure to give such notice will not disentitle her to maternity benefit.
  • On the production of proof, that she is pregnant the maternity benefit amount for the period previous to the date of her expected delivery shall be paid in advance to the woman and the subsequent amount shall be paid within 48 hours of production of proof that the woman has delivered a child.

VI. Other Important Provisions of the Act

  1. A medical bonus of thirty-five thousand rupees is provided to the women if no free of charge pre-natal and post-natal care is provided by the employer.
  2. Section 9: This is the most progressive provision which is legislators included under this Act and India was the first country to even include such provision, that is in case of miscarriage or medical termination of pregnancy, a woman on the production of such proof must be given leave for six weeks with wages immediately following the day of her miscarriage or, her medical termination of pregnancy.
  3. Similarly, in the case of a tubectomy operation, a woman on the production of such proof may be given leave for two weeks with wages. Further, if she has suffered any illness arising out of pregnancy, delivery, premature birth of a child, miscarriage, medical termination of pregnancy, or tubectomy operation then on production of such proof she will be given in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, another one month leave with wages.
  4. Every woman when returns to duty after childbirth must be given 2 nursing breaks until the child becomes 15 months old. The nursing break must be with the interval for rest allowed to her in course of her daily work.
  5. Section 12 lays down that a woman cannot be dismissed from duty if she absents herself under this Act and it will be unlawful for her employer to discharge her during or because of such absence. An appeal to the prescribed authority lies within 60 days from the date the order of dismissal or discharge is communicated to her. The decision of the authority is final.

In the case of Chandrika v. Indian Red Cross Society[iv], the Petitioner was terminated without communication while she was on maternity leave and the maternity benefits were not provided. The Court held that the Petitioner’s services had been terminated illegally and she should be taken back in the service and must be given the maternity benefits.

In the recent Judgment of Manisha Priyadarshini v. Aurobindo College –Evening & Ors.,[v] the appellant’s contract expired during Covid-19, while she was on maternity leave. Delhi High Court has quashed the termination order dated 29.05.2019, issued by the College, and also directed the college to appoint the appellant to the post of Assistant Professor in the English Department temporarily till such time that the vacant posts are filled up through regular appointment.

  1. Where the dismissal is for gross misconduct, of the woman then the employer can through order in writing deprive her of the maternity benefit or medical bonus or both.
  2. Under Section 18 the right of the woman to avail maternity benefit will be forfeited if she has started working in another establishment during her period of maternity leaves.
  3. Section 14 lays down the provisions regarding the appointment of the Inspector under this Act.

VII. Provisions added in through the Maternity Benefit (Amendment) Act,2017

The amendment introduced an enabling provision that may be exercised after the expiry of the 26 weeks leaves period and under which women employees may be able to avail of ‘work from home’ on terms that are mutually agreed with the employer.

  1. In an Establishment employing 50 or more employees, a creche facility is mandatory with permission to visit the creche 4 times during the day.
  2. At the time of their appointment, employers must educate women about the maternity benefits available to them.
PENALTIES UNDER THE ACT
Section 21(1) Employer fails to pay maternity benefit or discharges or dismisses her from employment during or on account of absence. Imprisonment not less than 3 months and can extent till 1 year or fine of Rs.2000 extended till Rs. 5000

 

Section 21(2) Employer contravenes provisions of this Act and no penalty provided elsewhere. Imprisonment till 1 year or fine of Rs.5000 or both

 

Section 22 If the person Fails to produce any register or document on demand by the Inspector or conceals or prevents any person from appearing before or being examined by an Inspector. Imprisonment till 1 year or fine of Rs.5000 or both

 

 

VIII. Concerns regarding the Maternity Benefit (Amendment) Act, 2017

The Maternity Benefit (Amendment) Act, 2017 is silent on various aspects, like:

  1. Up to which extent the creche facility can be extended or whether it is free of cost or the expense will be passed on to the employee.
  2. Whether the amended maternity benefits will apply to women who are presently undergoing maternity leave or not. According to the Employees State Insurance Corporation, the ESI Act was also amended in 2017 to provide benefits similar to the Maternity Benefit (Amendment) Act, 2017. It specifies that a woman is entitled to avail of the increased maternity leave only if the actual or expected date of delivery was on or after 20 January. This approach can be taken for the time being.
  3. Another question which needs clarity is that whether an adopting/commissioning mother is eligible to avail of adoption/surrogacy leave if the child is handed over to her before the Amendment is notified.
  4. No duration has been specified for each break of four visits to the crèche each day, which includes the interval for rest allowed to her.

IX. Conclusion

Every human being has some basic rights which are important for their existence. For the social, economic, and moral growth of the society, there was a need to create balance. Thus, the framers of our constitution inserted certain provisions which specifically included women and talks about maternity benefits like:

Article 42 which lays down provision for just and humane conditions of work and maternity relief, Article 14 – Right to social equality for all genders,

Article 15Right not to be discriminated against based on sex and also it empowers the State to make special provisions for women,

Article 16 – Equal opportunities for all citizens in matters relating to employment or appointment of any office under the State and

Article 21 Right to Life and Personal Liberty in the context of providing a pregnant woman all the basic facilities along with protection of her employment and livelihood.

The present Act was drafted while keeping in mind the above provisions.

A woman has a fundamental right to dignity as a mother and the maternity leave period is a part of the service period under the maternity policy of India. Further, just because a woman gets pregnant does not mean she is not able to work with the same zeal she uses to, carrying a child doesn’t take away the brain and strength she is born with. She is more powerful and full of life while carrying a baby in her womb.

Pregnancy brings more challenges in a women’s life and during such times the organization she is working for should be more supportive rather than being judgmental that whether she can continue work or not. She needs that positive work environment so that she doesn’t think that planning to start a family was the worst decision of her life. Also, the woman has a chance of getting postpartum depression after childbirth.

It is a mix of emotional, behavioural and physical changes in a woman after giving birth. It is a major depression that begins within 4 weeks after childbirth and one of the reasons for getting it can be a job loss. Thus, we need to save our women from such psychological impacts and must provide them with all the required maternity benefits with the assurance of job security. Let’s make it easy for them in some way.


[i] (1981) 4 SCC 335.

[ii] The Maternity Benefit Act ,1961,s2(1)(a)

[iii] Asif Iqbal, A central government employee, who had been given birth to a third child, not entitled to maternity leave with pay: Madras HC, Available here ( last visited on 5 May 2021)

[iv] 131 (2006) DLT 585.

[v] ICL 2020 Del. 264


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