MATERNITY BENEFITS ACT, 1961 AND CHAPTER

VI OF THE CODE ON SOCIAL SECURITY, 2020

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INTRODUCTION
 The obligations of employment necessitate balancing job, childbearing, and childrearing responsibilities. The
Maternity Benefit Act, of 1961 was enacted to regulate the employment of women in certain establishments for
certain periods before and after childbirth and to provide for maternity benefits and certain other benefits.
 The increasing transformation of society makes it necessary for women to avoid becoming exposed during the
precarious stage of pregnancy. Hence, the Maternity Benefit Act guarantees that a woman has access to the same
protections at work when she is pregnant.
 The concepts of maternity rights and gender equality, as we see today, have stemmed from various international
human rights legislation and treaties such as the International Covenant on Economic, Social and Cultural Rights
of 1996. The International Labour Organization on many occasions has highlighted the importance of extending
maternity protection and promoting a balance in the work and personal life of the women such as Maternity
Protection Convention, 2000. In response to the 1975 seating and the 2004 seating of the ILO, the Indian
Parliament amended the preexisting Maternity Benefit Act in 2017, to make it more inclusive and at par with
international standards.
 The Maternity Benefit Act of 1961 and its most recent revision from 2017 also ensure that women can actively2
participate in the workforce after giving birth.
MATERNITY BENEFIT LAWS & THE CONSTITUTION OF INDIA
 The rights and privileges for the betterment of women are: the right to equality (Article 14), the right to social
equality (Article 15), the right to social equality in the employment (Article 16), Article 39(a) guarantees a
sufficient means of livelihood, Article 39(d) guarantees equal pay for equal work, Article 39(e) guarantees that
workers’ health and strength are not exploited, right to just and humane working conditions and maternity leave
(Article 42).
 The Indian Constitution authorizes the government to provide specific provisions for women under Article 15(3).
Article 15 (3)’s principal goal is to prevent “protective discrimination” based on women’s weak physical position.
The reason for this is that “women’s physical structure and performance of maternal functions placed her at a
disadvantage in the struggle for survival, and her physical well-being became an object of public interest and care
in order to preserve the race’s strength and vitality.” This provision has allowed the State to enact special
legislation solely for the benefit of the women.
 Art. 21, Right to Life and Personal Liberty, guarantees not only the right to safeguard one’s body, but also a
broader range of rights. The right to life refers to the ability to live a full, meaningful, and dignified life. It doesn’t
have a specific meaning. It’s more than just living or existing as an animal. The meaning of the word life is
inexhaustible, and it will be available to all citizens of the country. As a result, the state must provide all of the3
facilities and services that a pregnant working woman requires while also protecting her employment and both her
and her child’s health.
RIGHT TO PAYMENT OF MATERNITY BENEFIT: SECTION 5
 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 her
delivery, the actual day of her delivery and any period immediately following that day.
(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.
 (The period has been reduced from 160 days to 80 days by the virtue of 2017 amendment)
(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 mor than two surviving
children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.
(4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled4
to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the
commissioning mother, as the case may be.
BENEFITS PROVIDED
 Monetary Benefits: Under the ambit of Section 5 (1), every woman is entitled to receive maternity benefits calculated at the
rate of average daily wage for the period of her actual absence i.e., for the whole of the maternity leave (including the period
preceding the delivery, the actual delivery date, and the period post-delivery)
 Work From Home: As per Section 5 (5) of the Act (as inserted by the 2017 amendment) if the job profile of the women
facilitates, the employer may allow the provision of work from home to such women after the completion of the maternity
break. The period and conditions of such work can be mutually decided between the employer and the employee.
 Nursing Breaks: As per Section 11 of the Act, every woman is entitled to 2 nursing breaks of the prescribed duration for
nursing the child until the child turns 15 months old, apart from the rest interval allowed, through her daily course of work.
 Crèche Facility: As per Section 11(A) of the Act (added via 2017 amendment) every establishment with more than 50
employees is prescribed to have a creche facility for the baby and the mother should be allowed 4 visits to the creche in a
day which shall include the nursing breaks and the rest intervals allowed to her.
 Medical Bonus: The woman is entitled to receive an amount of Rs. 1000 from the employer in case the pre-natal and post-
natal care is not provided by the employer at zero cost under Section 8(1) of the Act. (Rs. 3500 u/s 64, CSS)
 Prevention from dismissal: The Act under the provision of Section 12 makes it unlawful for the employer to dismiss or5
deprive an employee of claiming maternity benefits as prescribed by the Act. except in the cases of gross misconduct by the
woman employee.
B. SHAH V. LABOUR COURT, AIR 1978 SC 12
 In October 1967, a pregnant worker employed by the enterprise Mountain Stuart Estate was authorized to take her
maternity leave. The worker received benefits equivalent to 12 weeks’ work, but Sundays were excluded from the
calculation since the enterprise considered them to be unpaid rest days. Not satisfied with this payment, the
worker took the case to the Labour Court, alleging that the benefits paid to her for her maternity leave should
include the 12 Sundays.
 The Supreme Court explained the computation of maternity benefits in the case of a worker engaged on a daily
wage basis. Computation of maternity benefit is to be made for all the days including Sundays and rest days which
may be wageless holidays comprised in the actual period of absence of the woman extending upto 6 weeks
preceding and including the day of delivery as also for all the days falling within the 6 weeks immediately
following the day of delivery thereby ensuring that the woman workers get for the said period not only the amount
equal to hundred per cent of the wages which who was previously earning but also the benefit of the wages for all
the Sundays and rest days falling within the aforesaid two periods which would ultimately be conducive to the
interest of both the woman worker and her employer.
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MUNICIPAL CORPORATION OF DELHI V. FEMALE WORKERS
(MUSTER ROLL) ) AND ANOTHER, 2000 SCC (L&S) 331

 Female employees who had been working for years as daily wage employees with the Municipal Corporation of
Delhi were denied maternity leave because they were classified as temporary workers. The Supreme Court struck
down this practice.
 Relying on fundamental rights enshrined in Articles 14 and 15, the Directive Principles of State Policy reflected in
Articles 39, 42 and 43 of the Indian Constitution and India’s international law obligations under Article 11 of
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Court held that
regardless of the nature of their duties, their avocation and the place where they work, all female workers must be
provided the facilities to which they are entitled under the MB Act 1961.

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UNION OF INDIA V. ASIYA BEGUM, WA NO. 4343 OF 2019
(MADRAS HIGH COURT): TWINS

 As per the provisions, maternity benefit could be availed only upto two surviving children; however, the petitioner
in the case gave birth to twins in her first delivery and was given her fair share of leaves of upto 180 days of
maternity period. However, in her second delivery, the question ‘whether the maternity benefit could still be
availed as it would be her third child, from second delivery’ came to the forefront. It brought forth a unique need
of a liberal and unconventional interpretation of the existing framework.
 Adopting liberal rule of interpretation, the court held that if the concern of the State Government is to afford
protection to the women during /at or after delivery, then the rule cannot be based upon the number of children
delivered in each delivery and it should be based on the delivery itself.
 The interpretation of law cannot defeat the very purpose for which the law was enacted. Therefore, the orders
passed by the respondents, declining maternity leave and ordering recovery of salary paid for the eligible
maternity period, have to be set-aside.
 Unless there is a law prohibiting / restricting the number of delivery in order to have indirect control over
population, then the Government cannot decline maternity leave, fixing the number of children delivered in each
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delivery as the basis.
WHETHER A SURROGATE MOTHER IS ENTITLED TO MATERNITY
LEAVE?

 Pooja Jignesh Doshi v. State of Maharashtra and Hema Vijay Menon v. State of Maharashtra (Bombay High
Court) WP No. 1665 of 2015: Maternity leave is intended the ends of Social Justice to women and the child. To
distinguish between a mother who begets a child biologically and one who begets a child through surrogacy would
result in insulting the womanhood and motherhood of the woman who intends to raise a child of surrogacy the
same as she would raise a child born from her biologically.
 Hence, a surrogate mother is also entitled to maternity leave.

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PROVISIONS ON APPOINTMENT AND POWERS OF INSPECTOR
 Inspectors’ appointment [Section 14]: The government has designated Inspectors to administer and execute the
Act. These Inspectors must be Public Servants, as specified in Section 21 of the Indian Penal Code, according to
Section 16.
 Section 17: Power of Inspector to direct payments to be made:

1. Any woman claiming that—

a) maternity benefit or any other amount to which she is entitled under this Act and any person claiming that
payment due under section 7 (in case of death of a woman) has been improperly withheld;
b) her employer has discharged or dismissed her during or on account of her absence from work in accordance with
the provisions of this Act, may make a complaint to the Inspector.
2. The Inspector may, of his own motion or on receipt of a complaint referred to in sub-section (1), make an inquiry
or cause an inquiry to be made and if satisfied that—
a) payment has been wrongfully withheld, may direct the payment to be made in accordance with his orders;
b) she has been discharged or dismissed during or on account of her absence from work in accordance with the10
provisions of this Act, may pass such orders as are just and proper according to the circumstances of the case.
PENALTIES FOR CONTRAVENTION OF THE ACT

 Section 21: Penalty for contravention of Act by employer.—(1) If any employer fails to pay any amount of
maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account
of her absence from work in accordance with the provisions of this Act, he shall be punishable with
imprisonment which shall not be less than three months but which may extend to one year and with fine which
shall not be less than two thousand rupees but which may extend to five thousand rupees:
Provided that the court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment
for a lesser term or fine only in lieu of imprisonment.
(2) If any employer contravenes the provisions of this Act or the rules made thereunder, he shall, if no other
penalty is elsewhere provided by or under this Act for such contravention, be punishable with imprisonment
which may extend to one year, or with fine which may extend to five thousand rupees, or with both:
Provided that 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 entitled thereto.
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