Legal Provisions

The Maternity Benefits Act 1961

The Maternity Benefits Act 1961 was a social security legal provision to safeguard the interest of
women workers against the disadvantages accompanied by maternity regarding work security.

Applicability and Eligibility: The Act is applicable to any organisation such as mines, factories,
plantations, shops as per Shops and Establishment Act, any central or state government or any
establishments which has a minimum of 10 employees employed in past 12 months. Any woman is
eligible to claim the rights as per the act if she has worked a minimum of 80 days in the past 12
months (section 5(2)).

Benefits: Under section 5 of the Act, a woman eligible for the Act can avail 12 weeks of maternity
leave with pay at the rate of average daily wage throughout the duration of absence from work,
from the delivery day or a day preceding it. Under section 8 of the Act, they are also entitled to a
medical bonus of Rs.2500 from the employer unless the employer provides prenatal confinement
and post-natal care free of charge. Under section 11 a woman who has returned for work after
giving childbirth shall also be eligible to two nursing breaks until the child is 15 months old.

The Maternity Benefit (Amendment) Act 2017, which was passed by the Rajya Sabha
in the year August 2016 under the recommendations of Indian Labour Commission has
extended the period of maternity leave from 12 weeks to 26 weeks, increased prenatal leave
from six to eight weeks, and made provisions of 12 weeks of maternity leave for women
having a 3rd child with two surviving child previously. Under Section 5e(4), it also included
leave provisions of 12 weeks for women who adopt a child under the age of 3 months. Under
Section 11(A), every organisation having 50 or above employees shall have a crèche (nursery)
facility where babies can be cared or during working days, the crèche should be established
within 500 meters of the establishment. A guideline to be followed for facilities in the crèche
are mentioned as well. Under Section 5(5), if the nature of work is applicable for a distance
work, the employer shall provide provisions for work from home after availing the benefits on
a mutual agreement basis.

Apart from maternity conditions mentioned above, the right to leave are applicable under:-

1) Miscarriage/abortion: Paid leave of 6 weeks from the date as and when the
miscarriage happened, provided there is evidence of such happening.
2) Tubectomy: Paid leave of two weeks with evidence.
3) Illness due to pregnancy: Right to ask for paid leave in addition to provisions
udner section 5 and 6 if proof of illness if applicable.

Penalty for contravention: Any employer contravening any provisions of the act may be
punished with imprisonment of not less than 3 months which may be extended upto 1 year
and fines of not less than Rs. 2000 which may be extended upto Rs.5000.

Regarding Dismissal: Under section 12 of the Act, all eligible women are protected from
dismissal or discharge during period of absence.
Regarding contract override: Under section 27, if a better contract or agreement is available
for provisions of maternity benefits, the beneficiaries are entitled to receive these benefits
instead of the benefits mentioned in the Act.

In case of death: Under section 5(3), if a woman dies before receiving her benefits, the
benefits shall go to the person nominated by her in the notice given under section 6, or in the
absence of a nominee, it will go to her legal representative.

International Labour Organisation, Convention 183

The Maternity Protection Convention, 2000 (No.183) is the most updated international
labour standard on maternity protection. It sets guidelines for special provisions related to
maternity benefits which are more or less followed in the Maternity Benefits Act, 1961,
however, India has not yet ratified the C183 of ILO.

In this Convention, woman refers to any female person without any discrimination, and
applies to all employed women. It creates obligations for the ratifying state to provide 14
weeks of paid leave which shall be no less than 2/3rd of previous earnings, provides
protection from discrimination and work that are unsuitable for a pregnant or nursing
mother. It also protects them from termination of employment during absence except on
grounds unrelated to maternity, and also provides for the right to claim one or more daily
breaks or reduction of working hours to give time for breastfeeding.

ESI Act 1948

The Employee State Insurance Scheme 1948 is a multidimensional social security system
meant for provisions of social security to working class citizens. The scheme provides for
protection in 568 districts across all states and Union Territories of India except
Lakshadweep. The act provides benefits in case of sickness, employee injuries etc. and
maternity is one part of it. The Maternity Benefits Act served as a more comprehensive
addition to the provisions in this act.

The maternity benefits under this scheme provides for 26 weeks of paid leave  which is
extendable by further one month on medical advice at the rate of full wage subject to
contribution for 70 days in the preceding Two Contribution Periods.

References:

1. https://www.ilo.org/dyn/travail/docs/678/maternitybenefitsact1961.pdf
2. https://labour.gov.in/sites/default/files/Maternity%20Benefit%20Amendment%20Act
%2C2017%20.pdf
3. https://blog.ipleaders.in/maternity-benefit-a-legal-obligation-on-the-state/
4. https://www.ilo.org/global/standards/subjects-covered-by-international-labour-
standards/maternity-protection/lang--en/index.htm
5.