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1) Maternity Benefit Act, 1961

The Maternity Benefit Act, 1961 was enacted as per Article 42 of the
constitution
which states a humane working condition for pregnant women and keeping in
view all the pre-constitution legislations and the revised ILO Maternity
Protection Convention, 1952.

The 44th Session of Indian Labour Conference (ILC), has recommended for
enhancing maternity leave under Maternity Benefit Act, 1961 from existing
twelve weeks to twenty-four weeks. This recommendation has been reiterated
during 45th and 46th Session of ILC. The Ministry of Women and Child
Development and other stakeholders has also requested to enhance maternity
benefit under the Maternity Benefit Act, 1961.

Based on the recommendations of ILC and requests from the various quarters
and the deliberations during the Tripartite Consultations with stakeholders, it
has been decided to amend the Maternity Benefit Act, 1961.

THE MATERNITY BENEFIT (AMENDMENT) ACT, 2017

NO .6 OF 2017

The amendment extends the period of maternity leave from 12 to 26 weeks.

However, this increase in maternity leave does not apply to women with two or
more surviving children. Such women will be entitled to 12 weeks of leave.

The government has stated that the amendment extend the period of maternity
leave to 26 weeks to ensure maternal care to the child during early childhood. It
has also noted that such early care is essential for the growth and development
of the child.13 This objective could be defeated if sufficient maternity leave is
not given in the case of a third born child. Currently under the 1961 Act, the
minimum maternity leave of 12 weeks applies in all cases, regardless of the
number of previous children.

Maternity benefit act 1961 salient features - Gist

Section 5 provides, inter alia, as under :

"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, that is to say, the period immediately preceding the day of

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her delivery, the actual day of her delivery and any period immediately
following that day.

Explanation - For the purpose of this sub-section, the average daily wage
means the average of the woman's wages payable to her for the days on which
she has worked during the period of three calendar months immediately
preceding the date from which she absents herself on account of maternity, the
minimum rates of wages fixed or revised under the Minimum Wages Act, 1948
or ten rupees, whichever is the highest.

(2) No woman shall be entitled to maternity benefit unless she has actually
worked in an establishment of the employer from whom she claims maternity
benefit, for a period of not less than eighty days in the twelve months
immediately preceding the date of her expected delivery.

Explanation - For the purpose of calculating under this sub-section the days on
which a woman has actually worked in the establishment, the days for which
she has been laid off or was on holidays declared under any law for the time
being in force to be holidays with wages during the period of twelve months
immediately preceding the date of her expected delivery shall be taken into
account.

Section 5 (3) The maximum period for which any woman shall be entitled to
maternity benefit shall be twenty-six weeks of which not more than eight weeks
shall precede the date of her expected delivery:

Provided that the maximum period entitled to maternity benefit by a woman

having two or more than two surviving children shall be twelve weeks of which
not more than six weeks shall precede the date of her expected delivery;

PROVIDED FURTHER that where a woman dies during this period, the
maternity benefit shall be payable only for the days up to and including the day
of her death:

[PROVIDED ALSO that where a woman, having been delivered of a child,

dies during her delivery or during the period immediately following the date of
her delivery for which she is entitled for the maternity benefit, leaving behind in
either case the child, the employer shall be liable for the maternity benefit for
that entire period but if the child also dies during the said period, then, for the
days up to and including the date of the death of the child.]

Section 5A provides that if the Employees' State Insurance Act, 1948 is applied
or becomes applicable to the establishment where a woman is employed, such

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woman shall continue to be entitled to receive the maternity benefits under this
Act so long as she does not become qualified to claim maternity benefits under
Section 50 of that Act.

It may be stated that Section 50 of the Employees' State Insurance Act, 1948
provides as under :

"50. Maternity benefit - The qualification of an insured woman to claim

maternity benefit, the conditions subject to which such benefit may
be given, the rates and period thereof shall be such as may be prescribed by the
Central Government."

Section 5B of the Maternity Act speaks of payment of maternity benefit in

certain cases. Section 6 provides notice of claim for maternity benefit and
payment thereof. Section 8 provides that every woman entitled to maternity
benefit under this Act shall also be entitled to receive from her employer a
medical bonus of 1000 rupees, if no pre-natal confinement or post-natal care is
provided by the employer free of charge.

 Short Note( Explain) maternity benefit act

WHAT IS MATERNITY BENEFIT? (S. 5)

Payment at average daily wage Absence from work before and after delivery.
Average wage = period of 3 calendar months immediately preceding herself she
absents herself = fixed as per the Minimum Wages Act, 1948 or Rs.
10, whichever higher.
For period of her actual absence
i.e. period immediately preceding day of delivery, actual day of delivery and
any period immediately following that day
WHERE DOES IT APPLY? (S. 3)
· All establishments, including mines, factories and plantations belonging
to Government.
· Any establishment wherein persons are employed for exhibition
of equestrian, acrobatic and other performances.
· Any shop or establishment under any other law pertaining to shops or
establishment in State where 10 or more people are/were employed, in
the preceding 12 months.
· Except those to which the Employees’ State Insurance Act, 1948 (ESI) are
applicable for the time being. (S.5A & 5B)
· To women who cannot claim under ESI – Section 50 (because income is
above 3000 pm) then they can claim under MBA. (S.5A & 5B)
WHOM DOES IT APPLY TO? (S. 5)

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· Woman should have worked for not less than 80 days in the 12 preceding
months from her expected date of delivery.
· Working period = days the woman was laid-off paid holidays
· Not to woman who has immigrated into Assam or was pregnant at that
time.
· If the woman dies during delivery or in the period immediately
following the delivery and the child survives, then the employer is liable to
pay the full maternity benefit of that period to the child. (S. 7)
· But if the child dies, then the benefit is calculated upto and including the
date of death of child.
· Women engaged in casual or muster roll basis on daily wages also
entitled.
NOTICE FOR MATERNITY BENEFIT? (S. 6)
· Notice in writing (in the prescribed form) to her employer.
· Maternity amount paid to her or to her nominee (to be specified in the
notice)
· Will not work in any establishment during the period.
· Advance amount paid before leave and due amount paid on proof that
child is delivered.
· If notice not given before deliver, can be given as soon as possible after
delivery.
· The failure to give notice, however, does not disentitle the woman to the
benefit of the Act.
MEDICAL BONUS
· If free medical care not provided to the woman.
· Amount of Rs. 3500 (w.e.f. 19-12-2011)
GRANTING OF PAID LEAVE [wages @ maternity benefit] (S. 9 – S. 12)

Section Purpose of leave Period Note As per

Amendment
Act (2017)
5(3) Pregnancy and 12 weeks Not more than 6 26 weeks (not
delivery weeks preceding more than 8
delivery weeks
preceding
delivery)
Irrespective of Only for first
the number of two children,
children had then only 12
weeks
9 Tubectomy 2 weeks Starting No change

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operation immediately the

next date
following
10 Illness – due to Upto 1 In addition to: No change
pregnancy, month Absence allowed
delivery, under Section 6
miscarriage, & Section 9
medical
termination,
tubectomy
operation
11 Nursing breaks Two breaks In addition to the No change
of prescribed absence allowed
duration to her during the
course of daily
work
ADDITIONAL REASONS FOR LEAVE MENTIONED IN AMENDMENT
ACT, 2017
· Adoptive mothers – child below 3 months of age – 12 weeks leave.
· Commissioning mother (having surrogate child) – from the day the child
is handed over to her for 12 weeks.
· Option to work from home – immediately from the next date after the
maternity leave is over – till mutually decided by the employer and employee –
only if the nature of work assigned to her permits her.
UNLAWFUL DISMISSALS (S. 12)
· During or on account of such absence.
· Give notice that will expire during her period of absence
· During her pregnancy such that she cannot avail the benefits (unless it is
gross misconduct and properly communicated to the woman).
PENALTY FOR CONTRAVENTION
· For non-payment of benefit or dismissing or discharging
· Punishment of imprisonment not less than 3 months upto 1 year
· Fine not less than Rs. 2000 upto Rs. 5000.

 Object and Scope

Economic dependence of women is what gives rise to their subordination in

society today. Hence to remove such subordination and to lay the foundation of
equality women too must be made economically independent and must take an
active role in all sectors of business today.

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To positively affect the future work of the woman as an employee and decrease her
productivity so there is a need for maternity benefits for the women worker.[1]

To safeguard working women and their rights to remain self-reliant and

economically independent, maternity benefits are required.

To remove this hardship of the women workers, the concept of maternity benefit is
needed in order to enable the women workers to carry on the social function of
child; bearing and rearing without undue strain on their health and loss of wages.

hatever is needed to facilitate the birth of child to a woman who is in service, the
employer has to be considerate and sympathetic towards her and must realize the
physical difficulties

CASE STUDY: AIR INDIA V.

NERGESH MEERZA [7]
Facts: Under the relevant regulation of Air India Corporation (AIC) Act and Indian
Airlines Corporation (IAC) Act, there was a discrimination made between the
conditions of retirement and termination of service pertaining to air hostesses (AH)
and those of male pursers (MP) forming part of the same cabin crew and
performing similar duties. These conditions were that an AH under AIC retired
from service:
(1) On attaining the age of 35 years, or

(2) On marriage, if it took place within four years of service, or

(3) On first pregnancy.

Fact in Issue: Whether this amounts to violation of Article 14 (right to equality)

and Article 15 and 16 (no discrimination on basis of gender) of the Constitution?

Held:
(1)all Air Hostesses would continue to retire at 45 years of age and the MD would
be bound to grant yearly extension as a matter of course, if the Air Hostesses was
medically fit.

So far as condition (3) was concerned the court took strong exception to it and held
it to be “grossly unethical” and as smacking of “deep rooted sense of utter
selfishness at the cost of all human values”.
This condition was held to be unconstitutional as violative of article 14 and was
struck down.

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