Summary: The Maternity Benefit Act, 1961 (MBA, 1961), outlines the provisions for maternity leave for employed women in India. To be eligible, a woman must have worked for at least 80 days in the 12 months preceding her expected delivery. The Act broadly defines “woman” to include any employed female, irrespective of her marital status, covering single, married, or those in live-in relationships, thereby ensuring all working women are entitled to benefits. The MBA provides for maternity benefit at the rate of her average daily wage for the period of her actual absence. The maximum period of maternity leave is 26 weeks for the first and second child, with not more than eight weeks preceding the expected delivery date. For women with two or more surviving children, the maximum paid leave is 12 weeks, with not more than six weeks before delivery. The Act also covers other scenarios: a woman who legally adopts a child below three months or a commissioning mother is entitled to 12 weeks of benefit from the child’s handover date. Furthermore, miscarriage or medical termination of pregnancy grants six weeks of paid leave, and tubectomy operations grant two weeks. Employers are prohibited from dismissing or disadvantaging a woman during her maternity leave, with penalties for non-compliance including imprisonment and fines. The Act also mandates creche facilities for establishments with 50 or more employees and allows for work-from-home arrangements where feasible, based on mutual agreement.
As you are aware that provisions related to Maternity Leave in case of an employed woman is covered under of the Maternity Benefits Act, 1961. The MBA ,1961 provides that any woman, who has worked in an organization for more than 80 days is eligible for maternity leave with full wages. The period, time of leave, payments during the leave period and calculation of salary during the leave period will be covered by MBA,1961.
APPLICABLE PROVISIONS
SECTION 3(O) OF THE MATERNITY BENEFIT ACT, 1961 defines
“WOMAN”– means a woman employed, whether directly or through any agency, for wages in any establishment. The definition of woman as prescribed under the Act do not specify that a woman to get the benefits under the Act should be married only.
Any woman whether ‘married’ or ‘unmarried’ or living in ‘live-in-relationship’ is covered under the definition of woman as prescribed under the Act. It simply says that the ‘woman’ means any woman who is employed for wages in any establishment, whether employed directly or through any agency.
Further Section 5(1) states that every woman shall be entitled to the payment of maternity benefit.
SECTION 3(H) OF THE MATERNITY BENEFIT ACT, 1961 defines
“MATERNITY BENEFIT” means the payment referred to in Section 5(1).
SECTION 5(1) states that 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.
| SECTION 4 OF MATERNITY BENEFITS ACT, 1961 -EMPLOYMENT OF, OR WORK BY, WOMEN PROHIBITED DURING CERTAIN PERIODS—
(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy. (2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy. (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 foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health. (4) The period referred to in sub-section (3) shall be— (a) 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. |
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| SECTION 5 OF MATERNITY BENEFITS ACT, 1961 -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. 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 rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 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(80) in the twelve months immediately preceding the date of her expected delivery: Provided that- the qualifying period of eighty days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. 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. (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. (4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled 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. (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 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. PLEASE NOTE THAT: from above it is clear that -during Maternity leave, a woman receives full salary as it’s paid leave. However, the maximum leave she is entitled to depends on whether it’s her first, second or third child. The Maternity Benefit Act allows. i) 26 weeks of leave (approximately 6 months) for the first and second child and ii) 12 weeks paid leave (approximately three months) for third child. |
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| SECTION 7 OF MBA,1961- PAYMENT OF 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. |
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| SECTION 9. LEAVE FOR MISCARRIAGE, ETC.—In case of miscarriage or medical termination of pregnancy, 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 or, as the case may be, her medical termination of pregnancy.
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 |
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| 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, if the woman but for such discharge or 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, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty(60) days from the date on which order of such deprivation or discharge or dismissal 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 benefit or medical bonus, or both, or discharged or dismissed shall be final. (c) Nothing contained in this sub-section shall affect the provisions contained in sub-section (1). SECTION 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— (a) the nature of work assigned to her by virtue of the provisions contained in sub-section (3) of section 4; or (b) breaks for nursing the child allowed to her under the provisions of section 11. |
LET’S ANALYSE ABOVE PROVISIONS OF MATERNITY BENEFITS ACT, 1961
The Maternity Benefit Act defines the condition under which a woman can take maternity leave from their current employer.
ELIGIBILITY
1.In order to be eligible for maternity leave in a company, the woman must have worked for a minimum of 80 days in the period of 12 months before her expected date of child delivery.
2. The maternity leave can also be availed in case the child is adopted.
3. However, the amount of leave will be different in case of adoption.
4. Any woman whether ‘married’ or ‘unmarried’ or living in ‘live-in-relationship’ is covered under the definition of woman as prescribed under the Act.
PLEASE NOTE THAT:
1.If a woman has changed job, then she should work for minimum of 80 days (approximately three months) in 12 months period before expected child delivery date to be eligible for maternity leave.
3. A new employee won’t be eligible for maternity leave if she has not worked minimum 80 days in 12 months period.
What it means that if a pregnant woman joins a new company well before the end of second trimester of her pregnancy there is good possibility that she would complete mandatory 80 days of working in the new organization before the expected date of child delivery and be eligible for maternity benefit.
What is the maximum period of maternity leave?
The Maternity Benefit Act defines the maximum leave a woman can take as maternity.
During Maternity leave, a woman receives full salary as it’s paid leave. However, the maximum leave she is entitled to depends on whether it’s her first, second or third child.
The Maternity Benefit Act allows;
I) 26 weeks of leave (approximately 6 months) for the first and second child and
II) 12 weeks paid leave (approximately three months) for third child.
PLEASE NOTE THAT: If there are any serious issues with the newborn, then mother along with application & medical documents can ask for more leave. However, it would depend on the organization to organization to grant it.
There are different rules for maternity leave in case of adoption.
In case of legal adoption of a child below the age of 3 months or case of a commissioning mother, the maternity benefit shall be for 12 weeks from the date the child is handed over to the adopting/commissioning mother, as the case may be.
Not only delivery but other complications also covered
It is not only a successful delivery which is covered under maternity benefit, but many other related complications are also covered.
The Maternity Act provides a mandatory 6-week rest period for the woman after her miscarriage and medical termination of pregnancy as well. The Act further states that additional leaves can be provided to the employee if she is unable to resume work immediately after the maternity leave, subject to mutual agreement between the employer and employee.
From when does maternity leave start?
The Maternity Act defines the dates by which a woman can start her maternity leave.
Section 5(3) of the Maternity Benefit Act defines that a pregnant woman can start her maternity leave 8 weeks before the expected delivery date. The remaining 18 weeks of leave can be taken after the delivery.
The law does not allow the start of maternity leave prior to that. For woman having two or more than two surviving children, the maternity leave can start from 6 weeks prior to expected delivery date.
PLEASE NOTE THAT : In case the maternity leaves have been extended due to any of the reasons mentioned above i.e. miscarriage, tubectomy operations, etc., the end of the maternity leave shall be the end date of such extended maternity period.
Other benefits for woman under Maternity Benefit Act
The Maternity Benefit Act provides other benefits as well as to a woman.
The Maternity Act asks the establishment to mandatorily set up creche facility if it has 50 or more employees. The creche facility must be available even if the woman works at the private company.
LET’S UNDERSTAND PROVISIONS OF MBA.1961 THROUGH BELOW MENTIONED CASE STUDY
Ms. Chesta after passing BE got a job in Bombay Datamatics Ltd (an IT Company). She was placed in Kalyan Office of the Company. In Kalyan Office, Rohan was also doing job as a Software Consultant. After some time, Rohan and Ms. Chesta came closer. They took a flat in Kalyan area and started living in a ‘live-in-relationship’ from May 2022.
However, they did not disclose their relationship in the Office nor to any of their family/relatives. Ms. Chesta, on the request made by her, was allowed to do the office work from home. (Work from Home).
In December 2022, Ms. Chesta undergone a miscarriage. She applied for maternity leave, but the company denied to sanction the paid leave quoting the reason that as per its record, Ms. Chesta was unmarried.
The HR official of the Company, in a mail to Ms. Chesta, informed that there is no provision/policy of the Company to grant maternity leave on account of miscarriage/pregnancy to an unmarried woman.
Aggrieved to this Ms. Chesta approached a lawyer.
(i) Whether Ms. Chesta will get the benefit of maternity leave as described under the Maternity Benefit Act, 1961, in spite of the fact that she is not married (i.e., living in ‘live-in-relationship’)?
(ii) What maternity benefits can be claimed by Ms. Chesta?
(iii) Whether the contention of the Company is right in denying the maternity benefit to Ms. Chesta or the Company will be held liable for the contravention of the provisions of the Maternity Benefit Act, 1961?
REPLY: We have gone through definition of “ Women” under MBA,1961 which provides that; “WOMAN”– means a woman employed, whether directly or through any agency, for wages in any establishment”.
The definition of woman as prescribed under the Act do not specify that a woman to get the benefits under the Act should be married only.
Any woman whether ‘married’ or ‘unmarried’ or living in ‘live-in-relationship’ is covered under the definition of woman as prescribed under the Act. It simply says that the ‘woman’ means any woman who is employed for wages in any establishment, whether employed directly or through any agency.
Further Section 5(1) states that every woman shall be entitled to the payment of maternity benefit.
The contention of the Company is not right in denying the legitimate right of Ms. Chesta.
PENALTY FOR CONTRAVENTION OF ACT BY EMPLOYER:
Section 21 of the Maternity Benefit Act, 1961 provides that –
(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.
However, 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.
However, 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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DISCLAIMER: the article presented here is only for sharing information with readers. The views expressed are of personal nature, shall not be considered as professional advice. In case of necessity do consult with professionals.
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