ANALYSIS OF MATERNITY BENEFITS IN DIFFERENT INDUSTRIES/ACTS IN

LIGHT OF RIGHT TO EQUALITY IN INDIA

INTRODUCTION:

In the 21 st century India is fast emerging as a global power but for half of its population, the
women across the country, struggle to live life with dignity continues. Women are facing
problems in every sphere of life whether employment, access to health care or property
rights. The attention required is still not being paid to the issues that concern this section of
population. Women empowerment in India is still a distant dream. There still exists a wide
gap between the goals enunciated in the constitution, legislation, policies, plans, programs
and related mechanisms on the one hand and the situational reality of the status of women in
India, on the other hand. India is fast developing but women's in India continue to be
discriminated. The declining sex ratio in India amply portrays the discrimination shown
towards women at the stage of birth. Women may be have stardom in any stream but are
getting harassment every day by their surroundings. They are victims of crime directed
specifically at them, rape, kidnapping and abduction, dowry-related crimes, molestation,
sexual harassment, eve-teasing, etc. Around 40 per cent of married women in India are
victims of domestic violence. The increasing violence against women shown in television and
films and their vulgar portrayal as objects of sex is also an important contributing factor in
the escalating violence against women in India. The crimes against women in India are
growing at a rampant speed. Women, irrespective of their class, caste and educational status,
are not safe. The lack of any serious effort to rectify the weaknesses in dealing with the
crimes against women further compound the situation and result is that the conviction rate
remains abysmally low. The resurgence of women's issues resulted in U.N. declaration of
1975 as women's year and the period of 1975-1985 as women's decade due to the
international recognition of the problems faced by women's all over the world. The
appointment of the national committee on the status of women in India in 1972 and the
publication of the report highlighted that despite constitutional guarantees the roles, rights
and participation of women in all sphere of life were limited. In spite of constitutional and
legal safeguards, the women in India continue to suffer, due to lack of awareness of their
rights, illiteracy and oppressive practices and customs. A steep decline is evident in the male-
female ratio in India over the last century. It declined from 972 females for every 1000 males
in 1901 to 927 per thousand in 1991 and 921:1000 (921 females for 1000 males) according to
the census of 2001. The northern states in India show even poorer ratios than the national
average. From cradle to grave there is a systematic discrimination against women. Nutrition,
health care, education are all withheld or provided grudgingly to daughters. Son preference is
expressed in deep rooted cultural mores, blessings and rituals at a marriage, foods prescribed
for pregnant women, condolences at the birth of a girl child.1

Women Empowerment in India

According to Cambridge English Dictionary e mpowerment' means to authorize'. In the

context of the people, they have to be authorized to have control over their own lives. When
applied in the context of development of the particular segment of population, the women
have to be empowered' to have control over their own lives to better their socio- economic
and political conditions. Thus, women e mpowerment can be interpreted as totality of
empowerment including political, social, cultural, and other dimension of human life as also
the physical, moral and intellectual. Empowerment of women unlocks the door for
modernization of any society. Participation and control over resources of power are critical
indicators in the process of development. Women especially in rural areas possess the least
proportion of these resources and are therefore dependent. Thus, the question remains that
who will empower them and how to empower them. Ideally speaking no one empowers any
one and the best way is self empowerment '. However, this segment of population is
handicapped both structurally and culturally to empower themselves without any outside help
and affirmative action by the state and others. At the same time, it's also true that as long as
they don't make any effort at self-empowerment, it would be long and difficult task and
process for the outsiders to empower them. Instead of remaining passive beneficiaries, they
must have to become active partners. After independence, Government of India took several
initiatives, programmes and policies, apart from constitutional and legal safeguards for the
empowerment of women in the country.2

Constitutional provisions in India:

The Indian constitution grants equality to women and also empowers the state to adopt
measures of positive discrimination in favour of women to neutralize the cumulative socio-
economic, educational and political disadvantages faced by them. The principle of gender
equality is enshrined in the Preamble, Fundamental Rights, Fundamental Duties and
Directive Principles of the Indian c onstitution . Article 15 of the Indian constitution forbids
discrimination on grounds of caste, religion, sex, race and place of birth, whereas Article 16
ensures equal opportunities of employment. Some of the provisions of Indian constitution
safeguarding the women rights include: Equality before law for women (Article 14); S tate
not to discriminate against any citizen on grounds of religion, race, caste, sex , place of birth

1 Rehana Ghadially, eds., Women in Indian Society: A Reader , Sage Publications,

1988 , pp. 12-17.

2 India, Women's Empowerment', Available at

http://go.worldbank.org/8Z3GHYVJU0 ,
or any of them (Article 15 (I)); S tate to make special provision in favor of women and
children (Article 15 (3)); Equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State (Article 16); State to direct its
policy towards securing for men and women equally, the right to an adequate means of
livelihood (Article 39(a)); E qual pay for equal work for both men and women (Article
39(d)); To promote justice, on a basis of equal opportunity and to provide free legal aid by
suitable legislation or scheme or in any other way to ensure that opportunities for securing
justice are not denied to any citizen by reason of economic or other disabilities (Article 39 A);
State to make provision for securing just and humane conditions of work and for maternity
relief (Article 42); State to promote with special care the educational and economic interests
of the weaker sections of the people and to protect them from social injustice and all forms of
exploitation (Article 46); State to raise the level of nutrition and the standard of living of its
people and the improvement of public health (Article 47); T o promote harmony and the spirit
of common brotherhood amongst all the people of India and to renounce practices derogatory
to the dignity of women (Article 51(A) (e)); Not less than one-third (including the number of
seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the
total number of seats to be filled by direct election in every Panchayat to be reserved for
women and such seats to be allotted by rotation to different constituencies in a Panchayat
(Article 243 D(3)); and n ot less than one-third (including the number of seats reserved for
women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of
seats to be filled by direct election in every Municipality to be reserved for women and such
seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T 3)
etc.

Legislative provisions in India:

The government of India has enacted several women-specific legislations to uphold the
constitutional mandate and to protect women against social discrimination, violence and
atrocities and also to prevent social evils like child marriages, dowry, rape, practice of sati
etc. The crime against women' under various legislations of government of India could be
broadly classified within two categories: First, the crimes identified under the Indian Penal
Code (IPC) which includes Rape (Sec. 376 IPC); Kidnapping & Abduction for different
purposes (Sec. 363-373); Homicide for dowry, dowry deaths or their attempts (Sec.302/304-B
IPC); Torture, both mental and physical (Sec. 498-A IPC); Molestation (Sec. 354 IPC);
Sexual harassment (Sec. 509 IPC) and importation of girls (up to 21 years of age). Secondly,
the crimes identified under the Special Laws (SLL) which are though not gender specific, but
some do have special provisions to safeguard women and their interests. It includes The
Employees State Insurance Act, 1948; The Plantation Labor Act, 1951; The Family Courts
Act, 1954; The Special Marriage Act, 1954; The Hindu Marriage Act, 1955; The Hindu
Succession Act, 1956; Immoral Traffic (Prevention) Act, 1956; The Maternity Benefit Act,
1961 (Amended in 1995); Dowry Prohibition Act, 1961; The Medical Termination of
Pregnancy Act, 1971; The Contract Labor (Regulation and Abolition) Act, 1976; The Equal
Remuneration Act, 1976; The Child Marriage Restraint (Amendment) Act, 1979; The
Criminal Law (Amendment) Act, 1983; The Factories (Amendment) Act, 1986; Indecent
Representation of Women (Prohibition) Act, 1986; Commission of Sati (Prevention) Act,
1987; and The Marriage (Amendment) Act, 2001 etc.3

MATERNITY BENEFIT ACT, 1961 IN A NUTSHELL

This Act may be called the Maternity Benefit Act, 1961.

OBJECTIVE:

An Act to regulate the employment of women in certain establishments for certain

Period before and after child-birth and to provide for maternity benefit and certain other
benefits.

It extends to the whole of India in relation to mines and to any other establishment wherein
persons are employed for the exhibition of equestrian, acrobatic and other performances, by
the Central Government, and in relation to other establishments in State, by the State
Government.

4. Employment of, or work by, women prohibited during certain period:

No employer shall knowingly employ a woman in any establishment during the six
weeks immediately following the day of her delivery or her miscarriage.

No woman shall work in any establishment during the six weeks immediately

following the day of her delivery of her miscarriage.

Without prejudice to the provisions of section 6, no pregnant woman shall, on a

request being made by her in this behalf, be required by her employer to do during the
period specified in sub-section (4) any work which is of an arduous nature or which involves
long hours of standing or which in any way is likely to interfere with her

pregnancy or the normal development of the foetus, or is likely to cause her miscarriage

or otherwise to adversely affect her health.

S 4(3)

3 Rameshwari Pandya, Women Welfare and Empowerment in India: Vision for 21

Century , New Delhi: New Century Publications, 2008.
a) At the period of one month immediately preceding the period of six weeks, before the date
of her expected delivery

b) Any period during the said period of six weeks for which the pregnant woman does

not avail of leave of absence under section 6.

5. Right to payment of maternity benefit:

(1) Subject to the provisions of this Act, Every woman shall be entitled to, and her
employer shall be liable for, the payment of Maternity benefit at the rate of the average daily
wage for the period of her actual absence Immediately preceding and including the day of her
delivery and for the six weeks Immediately following that day.4

NOTES. The term week means a cycle of seven days including Sundays

5-A. Continuance of payment of maternity benefit in certain cases:

Every woman Entitled to the payment of maternity benefit under this Act shall,
notwithstanding the application of the Employees State Insurance Act, 1948 (34 of 1948), to
the factory or other establishment in which she is employed, continue to be so entitled until
she becomes qualified to claim maternity benefit under Sec. 50 of that Act.

6. Notice of claim for maternity benefit and payment thereof:

Any woman employed in an establishment and entitled to maternity benefit under the
provisions of this Act may give notice in writing in such form as may be prescribed, to her
employer,

stating that her maternity benefit and any other amount to which she may be entitled

under this Act may be paid to her or to such person as she may nominate in the notice and
that she will not work in any establishment during the period for which she receives
maternity benefit.

In the case of a woman who is pregnant, such notice shall state the date from which
she will be absent from work, not being a date earlier than six weeks from the date of her
expected delivery.

4 B. Shah V. Presiding Officer, A.I.R. 1978 S. C. 12

 Any woman who has not given the notice when she was pregnant may give such
notice as soon as possible after the delivery.

On receipt of the notice, the employer shall permit such woman to absent herself from
the establishment until the expiry of six weeks after the day of her delivery.

The amount of maternity benefit for the period preceding the date of her expected
delivery shall be paid in advance by the employer to the woman on the production of such
proof as may be prescribed that the woman is pregnant, and the amount due for the
subsequent period shall be paid by the employer to the woman within forty-eight hours of
production of such proof as may be prescribed that the woman has been delivered of a child.

The failure to give notice under this section shall not disentitle a woman to maternity
benefit or any other amount under this Act if she is otherwise entitled to such benefit or
amount and in any such case an Inspector may either of his own motion or on an application
made to him by the woman, order the payment of such benefit or amount within such period
as may be specified in the order.

7. Payment or maternity benefit in case of death of a woman:

If a woman entitled to maternity benefit or any other amount under this Act, dies before
receiving such maternity benefit or amount, or where the employer is liable for maternity
benefit under the second proviso to sub-section (3) of section 5, the employer shall pay such
benefit or amount to the person nominated by the woman in the notice given under section 6
and in case there is no such nominee, to her legal representative.

8. Payment of medical bonus:

Every woman entitled to maternity benefit under this Act shall also be entitled to receive
from her employer a medical bonus of twenty-five rupees, if no pre-natal confinement and
post-natal care is provided for by the employer free of charge.

9. Leave for miscarriage:

In case of miscarriage, a woman shall, on production of such proof as may be prescribed, be

entitled to leave with wages at the rate of maternity benefit for a period of six weeks
immediately following the day of her miscarriage.

10. Leave for illness arising out of pregnancy, delivery, premature birth of child, or

Miscarriage:

A woman suffering illness arising out of pregnancy, delivery, premature birth of child or
miscarriage shall, on production of such proof as may be prescribed, be entitled in addition to
the period of absence allowed to her under section 6, or, as the case may be, under section 9,
to leave with wages at the rate of maternity benefit for a maximum period of one month.

11. Nursing breaks:

Every woman delivered of a child who returns to duty after such delivery shall, in addition to
the interval for rest allowed to her, be allowed in the course of her daily work two breaks of
the prescribed duration for nursing the child until the child attains the age of fifteen months.

12. Dismissal during absence or pregnancy:

Where a woman absents herself from work in accordance with the provisions of this
Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of
such absence or to give notice of discharge or dismissal on such a day that the notice will
expire during such absence, or to vary to her disadvantage any of the conditions of her
service.

(a) The discharge or dismissal of a woman at any time during her pregnancy, if the
woman but for such discharge of dismissal would have been entitled to maternity benefit or
medical bonus referred to in section 8, shall not have the effect of depriving her of the
maternity benefit or medical bonus: Provided that where the dismissal is for any prescribed
gross misconduct the employer may, by order in writing communicated to the woman,
deprive her of the maternity benefit or medical bonus or both.

(b) Any woman deprived of maternity benefit or medical bonus or both may, within
sixty days from the date on which the order of such deprivation is communicated to her,
appeal to such authority as may be prescribed, and the decision of that authority on such
appeal, whether the woman should or should not be deprived of maternity benefits or medical
bonus or both, shall be final.

(c) Nothing contained in this sub-section shall affect the provisions contained in
subsection (1).

13. No deduction of wages in certain cases:

No deduction from the normal and usual daily wages of a woman entitled to maternity benefit
under the provisions of this Act shall be made by reason only of the nature of work assigned
to her by virtue of the provisions contained in S 4(3) or breaks for nursing the child allowed
to her under the provisions of section 11.

14. Appointment of Inspectors:

The appropriate Government may, by notification in the Official Gazette, appoint such
officers as it thinks fit to by Inspectors for the purposes of this Act and may define the local
limits of the jurisdiction within which they shall exercise their function under this Act.

19. Abstracts of Act and rules there under to be exhibited:

An abstract of the provisions of this Act and the rules made there under in the language or
languages of the locality shall be exhibited I a conspicuous place by the employer in every
part of the establishment in which women are employed.

20. Registers:
Every employer shall prepare and maintain such registers, records and muster-rolls and in
such manner as may be prescribed.

21. Penalty for contravention of Act by employers:

If any employer contravenes the provisions of this Act or the rules made there under he shall
be punishable with imprisonment which may extend to three months, or with fine which may
extend to five hundred rupees, or with both; and where the contravention is of any provision
regarding maternity benefit or regarding payment of any other amount and such maternity
benefit or amount has not already been recovered, the court shall in addition recover such
maternity benefit or amount as if it were a fine, and pay the same to the person.

22. Penalty for obstructing Inspector:

Whoever fails to produce on demand by the Inspector any register or document in his custody
kept in pursuance of this Act or the rules made there under or conceals or prevents any person
from appearing before or being examined by an Inspector, shall be punishable with
imprisonment which may extend to three months, or with fine which may extend to five
hundred rupees or with both.

24. Protection of action taken in good faith:

No suit, prosecution or other legal proceeding shall lie against any person for anything which
is in good faith done or intended to be done in pursuance of this Act or of any rule or order
made there under.

25. Power of Central Government to give directions:

The Central Government may give such directions as it may deem necessary to a State
Government regarding the carrying into execution the provisions of this Act and the State
Government shall comply with such directions.

26. Power to exempt establishments:

If the appropriate Government is satisfied that having regard to an establishment or a class of

establishments providing for the grant of benefit which are not less favorable than those
provided in this Act, it is necessary so to do, it may, by notification in the Official Gazette,
exempt subject to such conditions and restrictions, if any, as may be specified in the
notifications, the establishment or class of establishments from the operation of all or any of
the provisions of this Act or of any rule made there under.

27. Effect of laws and agreements inconsistent with this Act:

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith
contained in any other law or in the terms of any award, agreement or contract of service,
whether made before or after the coming into force of this Act.

28. Amendment of Act 69 of 1951:

In section 32 of Plantation Labour Act, 1951, --

(a) in sub-section (1), the letter and brackets (a) before the words in the case of sickness,
the word and after the words sickness allowance, and clause (b) shall be omitted.

(b) In sub-section (2), the words or maternity shall be omitted.

29. Repeal:

1. On the application of this Act.

2. To mines, the Mines Maternity Benefit Act, 1941 (19 of 1941); and

3. Maternity Benefit Act, 1929 (Bom. Act VII of 1929), as in force in that territory,
shall stand repealed.

ANALYSIS OF MATERNITY BENEFITS IN LIGHT OF RIGHT TO EQUALITY IN

INDIA:

1. One should be given the privilege to enjoy motherhood and childhood, a right in any
egalitarian society. In most of the countries paid paternal leave is available for those
who have worked for their current employer for a certain period.
2. Neither India nor any company is an exception. These acts in any country serve as a
protective umbrella as they restrict termination of service of pregnant woman
employee except on grounds of misconduct.
3. No employer should employ any employee for more than 8hours of work/day or 48
week hours, except in a few cases with conditions to be fulfilled.
4. The timings of the workers here are:

8:00 am 12:00 pm (4hours)

1:00 pm 5:30 pm (4 hours)

Saturday

8:00 am 1:00 pm (5 hours)

1:30 pm 2:00 pm (1/2 hours)

Total 48 hours/week

5. The maternity leave that is provided stands up to the maternity benefit act, i.e 12
weeks (84 days)
6. In accordance with the statutory provisions two nursing breaks are being provided.
Work is given in fields closer to the crches such that the mother spends most of her
time with the child.
7. The medical facilities are comparable to that of western standards, and it explains why
there is no maternal mortality for the past several years.
CONCLUSION: