THE MATERNITY BENEFIT ACT, 1961

Introduction:
Article 39(e) & (f) of the Constitution of India provides that the State shall, in
particular, direct its policy towards securing that the health and strength of the workers,
men and women, and the tender age of children are not abused and that citizens are
not forced by economic necessity to enter avocations unsuited to their age or strength.
And that women and children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity. They are protected against
exploitation and against moral and material abandonment.
Object:
The Maternity Benefit Act is intended to achieve the object of doing social justice to
women workers. Maternity benefits are aimed to protect the dignity of motherhood by
providing for the full and healthy maintenance of women and her child when she is not
working.
The act is applicable to mines, factories, circus industry, plantations, shops and
establishments employing ten or more persons. It can be extended to other
establishments by the State Governments.
What is Maternity?
Maternity means “Motherhood or Parenthood.” In simple it is the period
during pregnancy and shortly after childbirth.

WHAT IS MATERNITY BENEFIT?

It’s a privilege, benefit or protection given to the women employee during her
motherhood.
•The fundamental purpose for providing maternity benefits is to preserve the self-respect

for motherliness, protect the health of women, complete safety of the child, Due to the

increasing number of women employees in the government and private sector, it became

necessary to grant maternity leave and other maternity allowances to working women.

•The objective of maternity benefits is to protect the dignity of “Motherhood” by providing

the complete & health care to the women & her child when she is not able to perform her

duty due to her health condition. There is need for maternity benefits so that a woman is

to be able to give quality time to her child without having to worry about whether she will

lose her job and her source of income.

REASONS FOR NEED OF MATERNITY BENEFITS
1. Among the problems faced by women in the economic sphere of life ,biological role in
nature of childbearing is one. To curb such problem and protect the economic rights of
women there is need for maternity benefits for a female employee. Women are entitled to
these benefits as the child bearing process is intensely painful and can cause bodily
damage. This may severely 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.
2. To safeguard working women and their rights to remain self-reliant and economically
independent, maternity benefits are given. the employer has to be considerate and
sympathetic towards her and must realize the physical difficulties which a working woman
would face in performing her duties at the work place while carrying a baby in the womb
or while rearing up the child after birth.
3) Earlier, Many women workers, used to get back to the employment
immediately after delivering a child in order to retain their employment.
4) Many others had to bear a heavy strain to keep their efficiency during the
periods of pregnancy, which was injurious to the health of both, the mother
and the child.

5) The economic arrangements which were there earlier required them to

compromise their career and family goals. It was found that women won’t
have been able to continue in the business unless there is maternity benefits
provision.
6) To remove this hardship of the women workers, the concept of maternity
benefit is given and separate Act has been enacted.
 MATERNITY BENEFITS AND INDIAN CONSTITUTION

The Rights and Privileges for the betterment of women are:

• Right to equality in law [Article 14],
• Right to social equality [Article 15],
• Right to social equality in employment [Article 16]
 
• Right to adequate means of livelihood [Article 39 (a)],
• Right to equal pay for equal work [Article 39 (d)],
• Right that the health and strength of workers both men and women are not
abused [Article 39 (e)],
• Right to just and humane conditions of work and maternity relief [Article 42],
• Right to improvement in employment opportunities and conditions of the
working women [Article 46].
NaRGESH MEERza v. aIR INdia:
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.
Whether this amounts to violation of Article 14, 15 and 16 of the Constitution?
THE COURT HELD IT IS PURELY THE ARBITRARINESS OF THE AUTHORITY,ITS NOT A
REASONABLE CLASSIFICATION AND IT’S A VIOLATION OF ARTICLE 14.
ILO and STANDARDS ON MATERNITY PROTECTION:
International recognition for maternity benefit was achieved by the efforts of the International Labor
Organization. The core concerns of ILO have been to ensure that women’s work does not pose risk to
the health of the women and her children.

Conventions on Maternity
It was during the first International Labor Conference (ILC) in 1919 that the first Convention on Maternity
protection, Convention concerning the Employment of Women before and after Childbirth, 1919
(Convention No. 3) was adopted
This Convention was followed by two other conventions:
Convention concerning Maternity Protection (Revised), 1952 (Convention No. 103) and Convention
concerning the revision of the Maternity Protection Convention (Convention No.183) in 2000, which
progressively expanded the scope and entitlements of Maternity protection at work.
MATERNITY BENEFIT ACT, 1961
An Act to regulate the employment of women in certain establishment 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.

APPLICABILITY OF THE ACT:

It applies in the first instance, to every establishment being a factory, mine or
plantation including any such establishment belonging to Government and to every
establishment wherein persons are employed for the exhibition of equestrian,
acrobatic and other performances.
SECTION 3: DEFINITIONS
• Sec.3 (b) “Child” includes a still-born child.

• Sec.3 (c) “Delivery” means the birth of a child.

• Sec.3 (h) “Maternity Benefit” means the payment referred to in sub-section (1) of

section 5;
• Sec.3 (j) “Miscarriage” means expulsion of the contents of a pregnant uterus at any

period prior to or during the twenty-sixth week of pregnancy, but does not include
any miscarriage the causing of which is punishable under the Indian Penal Code (45
of 1860)
• Sec.3 (ba) “Commissioning Mother” means a biological mother who uses her egg to

create an embryo implanted in any other woman.

Sec.3(n) “Wages”
Means all remuneration paid or payable in cash to a woman, if the terms of the contract of
employment, express or implied, were fulfilled and includes –
(1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for
the time being entitled to;
(2) incentive bonus; and
(3) the money value of the concessional supply of food grains and other articles,

But does not include –

(i) any bonus other than incentive bonus;
(ii) overtime earnings and any deduction or payment made on account of fines;
(iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the
benefit of the woman under any law for the time being in force; and
(iv) any gratuity payable on the termination of service (Sec 3(n))
Section 3(o) “Woman” means a woman employed, whether
directly or through any agency, for wages in any establishment.

“Medical Termination of Pregnancy” means it is a procedure

of terminating pregnancy using medicines. In the early stage of
pregnancy(7-9 weeks),it can be terminated by the help of
medicines or surgical process.
 SECTION 4
EMPLOYMENT OF, OR WORK BY, WOMEN PROHIBITED DURING CERTAIN PERIOD

(1) No employer shall knowingly employ a woman in any establishment during the six weeks
immediately following the day of her delivery or her miscarriage;
(2) No woman shall work in any establishment during the six weeks immediately following the day of
her delivery of her miscarriage;
(3) 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 fetus, or is likely to cause
her miscarriage or otherwise to adversely affect her health;
(5) The period referred to in sub-section (3) shall be –
(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.
 BENEFITS UNDER THE ACT:
Cash Benefits:
- Leave with average pay for six weeks before the delivery

- Leave with average pay for six weeks after the delivery

- A medical bonus if the employer does not provide free medical care to the woman

- An additional leave with pay up to one month if the woman shows proof of illness due

to the pregnancy, delivery, miscarriage or premature birth

- In case of miscarriage, six weeks leave with average pay from the date of

miscarriage.
 Non Cash Benefits/ Privilege
• Light work for ten weeks (six weeks plus one month) before the date of
her expected delivery, if she asks for it,
• Two nursing breaks in the course of her daily work until the child is 15
months old,
• No discharge or dismissal while she is on maternity leave,
• No change to her disadvantage in any of the conditions of her
employment while on maternity leave,
• Pregnant women discharged or dismissed may still claim maternity
benefit from the employer.
 Under the Maternity Benefits Act, 1961 the condition levied is that the female
employee should have served the institution for a minimum period of 80 days in
12 months preceding the date of expected delivery.
 Also, the Act has undergone regular amendments with the recent one being in
2008. Here, the minimum medical bonus in case of inability of employer to
provide free medical care to pregnant women employee was raised from Rs 25
to Rs.1000 extending to Rs. 20000.
 The Act provides for 12 weeks of paid leave as maternity leave and 6 weeks in
case of miscarriage or termination of pregnancy
 In addition to the provisions for leave and cash benefits, the Act also
makes provisions for matters like light work for pregnant women 10
weeks prior to her delivery, nursing breaks during daily work till the
child attains the age of 15 months, etc.
 The Act serves as a protective umbrella as it restricts termination of
service of a pregnant woman employee except on grounds of
misconduct. Moreover, it imposes punishment for a period of minimum
three months or fine extending to Rs. 5000/- on the employer, in the
event of any failure to provide maternity benefits to female employees.
CASE: Municipal Corporation of Delhi v. Female Workers
In this case Union of Female Workers who were not on regular rolls, but were treated
as temporary workers and employed on Muster roll, claimed that they should also get
maternity benefit like regular workers. The court held that the provisions of the Act
would indicate that they are wholly in consonance with the Directive Principles of State
Policy, as set out in Article 39 and in other Articles, especially Article 42.
A woman employee, at the time of advanced pregnancy cannot be compelled to
undertake hard labour as it would be detrimental to her health and also to the health of
the fetus. It is for this reason that it is provided in the Act that she would be entitled to
maternity leave for certain periods prior to and after delivery.
 SECTION 5
RIGHT TO PAYMENT OF MATERNITY BENEFIT
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 absence on account of maternity

That is to say,
• The period immediately preceding the day of her delivery.

• The actual day of her delivery and

• Any period immediately following that day.

 AVERAGE DAILY WAGE MEANS

1. The average wages of 3 calendar months from the date from which she was

absent on account of maternity,

2. The minimum rate of wage fixed or revised under the Minimum Wages Act,

1948 or one rupees, whichever is the HIGHEST.

 CONDITION TO MATERNITY BENEFIT –
Section - 5(2)
Woman will get Maternity benefit only if
• She has actually worked in an establishment of the employer
• For a period of not less than 80 days.
• In the 12 months immediately preceding date of her expected
delivery
Section 5(3)
The maximum period of maternity benefit shall be 26 weeks of which
not more than 8 weeks shall precede the date of her expected
delivery.
If a woman dies during this period, the maternity benefit shall be
payable only for the days upto and including the day of her death.
 Where a woman, having been delivered 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.
• If the child also dies during the said period, then, for the days up to date of the
death of the child.
CASES -
• B. Shah v. Labour Court, Coimbatore AIR 1978 SC 12
Where the question was whether Sunday is to be counted in
calculation the amount of maternity benefit. It was held that, the
terms week has to be taken to signify a cycle of 7 days including
Sundays.
• Ram Bahadur Thakur (P.) Ltd. V. Chief Inspector of Plantations. 1989
II LLJ 20
whether in calculating 160 days period which a woman
employee is entitled to get maternity benefit, the work on half days
can be included or not.
It was held that, according to Section 5(2) of the Maternity
Benefit Act, the period during which a woman worker was laid off
should also be taken into consideration for ascertaining the
eligibility.
 SECTION 5(4)
• Woman who legally adopts a child below the age of three months or a
commissioning mother (means a biological mother, who uses her egg to create
and embryo implanted in any other woman) shall be entitled to maternity benefit
for a period of 12 weeks from the date the child is handed over to the adopting
mother or the commissioning mother, as the case may be.(6 weeks taken as pre
natal)

SECTION 5(5)
• In case where the nature of work assigned to a woman is of such nature that she
may work from home, the employer may allow work from home, the employer
may allow her to do so after availing of the maternity benefit for such period and
on such conditions as the employer and the woman may mutually agree.
 SECTION 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, the factory or other establishment
in which she is employed, continue to be so entitled until she becomes qualified to claim
maternity benefit under Section 50 of that Act.
SECTION 5-B –Payment of maternity benefit in certain cases.
Every woman –
• Who is employed in a factory or other establishment to which the provisions of the
Employees’ State Insurance Act, 1948 apply,
• Whose wages (including remuneration for over-time work) for a month exceed the amount
speicified in sub-clause(b) of clause 9 of the Section 2 of that Act,
• Who fulfills the conditions specified in sub-section (2) of section 5, shall be entitled to the
payment of maternity benefit under this Act.
 SECTION 6 – Notice of claim for maternity
benefit and payment thereof
• Any woman entitled to maternity benefit may give notice to her employer, stating
that her maternity benefit and any other amount to which she may be entitled may
be paid to her and that she will not work 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 earlier that 6 weeks from expected
delivery)
• A women who has not given the notice when she was pregnant, may give as soon
as possible after delivery.
• On receipt of the notice, the employer shall permit such woman to absent herself
during the period for which she receives the maternity benefit.
• Amount of maternity benefit for the period preceding the date of the expected
delivery shall be paid in advance by the employer to the woman on production of
such proof as may be prescribed.
• The amount due shall be paid by the employer within 48 hours of production of such
proof that woman as delivered a child.
• Failure to give notice, will not disentitle a woman to maternity benefit or any other
amount under this Act, if she is entitled to such benefit.
• An Inspector may either on 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.
SECTION 7. Payment of maternity benefit in case of death of a woman
Woman entitle to maternity benefit or any amount dies before receiving
such maternity benefit or amount or where the employer is liable for
maternity benefit under the provision of Section 5(3), 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.
 SECTION 8 : Right 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.
Section 9.LEAVE FOR MISCARRIAGESECTION
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.
Section 9A - Leave with Wages for Tubectomy Operation
• In case of tubectomy operation, 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 two weeks immediately following the day of
her tubectomy operation.
 OTHER LEAVES AND NURSING BREAKS
• SECTION 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.
• SECTION 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.
 SECTION 12: Dismissal During Absence of Pregnancy
(1) When 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.
(2) (a) The discharge or dismissal of a woman at any time during her pregnancy of 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.
 Section 13. DEDUCTION OF WAGES
No deduction of wages in certain cases.

(a} An employer cannot deduct the wage of a woman employee entitled to maternity
benefit by reason of the nature of work assigned to her,
(b) breaks taken to nurse her child, or any other reason attributed to her maternal
and post-delivery health/status.
Creche Facility:
Every establishment having 50 (fifty) or more employees are required to have a
mandatory creche facility (within the prescribed distance from the establishment),
either separately or along with other common facilities.
The woman is also to be allowed 4 (four) visits a day to the creche, which will
include the interval for rest allowed to her

 
 RECENT AMENDMENTS
The Union Cabinet, chaired by the Prime Minister Shri Narendra Modi, has given its ex-post facto
approval for amendments to the Maternity Benefit Act, 1961 by introducing the Maternity Benefit
(Amendment) Bill, 2016 in Parliament.

1.The maternity benefit Act 1961 protects the employment of women during the time of her maternity and
entitles her of a ‘maternity benefit’ – i.e. full paid absence from work – to take care for her child.

2.The act is applicable to all establishments employing 10 or more persons.

3.Increase Maternity Benefit from 12 weeks to 26 weeks for two surviving children

4.12 weeks for more than two children.

5. 12 weeks Maternity Benefit to a ‘Commissioning mother’ and ‘Adopting mother’.

6. Facilitate ’Work from home’

7. Mandatory provision of Creeche in respect of establishment having 50 or more employees.

• After analyzing various provisions of the 1961 Act and related cases it can be concluded that

Maternity Benefit Act, 1961 is a boon for the working women in the sense that they don’t have
job insecurity during their maternity period.

Shortcomings
• Firstly, the duration of leave must be extended in order to allow a mother to fully recover and

recuperate as well as efficiently nurse her new born child.

• the responsibility of child care is often singularly put upon women.

• This reinforces patriarchal notions and stereotypes and also enhances the discrimination they

face from employers.

• In order to reduce these factors, the Act should also make a provision for paternity leave and

follow a more egalitarian approach.