Maternity Benefit Act, 1950 (replaced by the more comprehensive Maternity Benefit Act, 1961)

Maternity Benefit Act, 1950 (replaced by the more comprehensive Maternity Benefit Act, 1961)

The Maternity Benefit Act, 1950 , was an early legislative effort in India aimed at protecting the rights and welfare of working women during pregnancy and maternity. This Act provided for maternity leave, healthcare benefits, and safeguards against employment termination during maternity. It sought to address the unique challenges faced by women in the workforce, ensuring they had the support and security needed to balance work and motherhood. Though subsequently replaced by the more comprehensive Maternity Benefit Act, 1961, the 1950 Act laid the foundation for progressive maternity rights in India. This act is applicable for the organisation which has the employer not less than 10 or more. The act was further amended in 2017 through the Maternity Bill 2017 which was passed first by Rajya Sabha on 11 August, 2016. Thereafter it was passed in the Lok Sabha on March 9, 2017 and it received the president’s assent on March 27, 2017.

Origin and History of the Maternity Benefit Act.

The attention over the Maternity Benefit was attracted after the first conference (First Maternity Protection Conference) was convened in 1919 by the International Labor Organisation. There were many rights discussed under this conference such as matters related to maternity relief, leave for bringing up children and the wages at the time of the leave etc…..In 1952, the resolution was amended which further increased the leave time and the amount of the benefits received by the women during that period. The fact that Motherhood requires the special care and attention clearly reflected under the UDHR-Universal Declaration of Human Rights, 1948, Art. 25(2).

It says that-“Motherhood and Childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”

Between the 18 th and 19th Century, India began to industrialize where the economy grew rapidly with the establishment of many factories. Initially, these factories sought so much labor, this demand for laborers stabilized later when this spate of expansion was over. Since very few out of this large population had education and even fewer means of employment, many of them found themselves in such factories. This situation allowed employers to exploit workers through minimal wages, unjust deductions of their wage, and no social or medical security. The employee was thus vulnerable and protected by nothing.

There were many acts passed by the Britishers to protect the rights of the workers and the Maternity Benefit Act was one of them. The Maternity Benefit Act 1929 was a special Indian legislation specially focusing on maternity benefits, which was drafted by Dr. Babasaheb Ambedkar, N.M. Joshi, and M.K. Dixit. The first pressure for this legislation came because of the exploitation of women workers in Bombay’s cotton mills where they deserved more reproductive rights.

Way back in 1931 in the Karachi resolution, the congress recognised the importance of maternity leave under the definition of ‘Labour’. Keeping this view after independence, the Constitution of India, 1950, Artiicle 42 itself gives the power of the government to make the law related to this.

After independence, India enacted the Maternity Benefit Act of 1961 based on the International Labour Organization’s Maternity Protection Convention of 1952. Even though it applied to government agencies and factories first, it later came to extend to the private sector but not to small-scale industries or agriculture.

With the fact that the female gender forms a ratio of half of the population, and also half of all workers, the Maternity Benefit Act is very vital. Their double responsibility, being at work and taking care of their children, will require protection in the workplace, ensuring that they will not lose their jobs in case they get pregnant or even during their breastfeeding periods with their children, B. shah v. Labour Court (1977) 4 SCC 384.

Aim and the Objective of the Act

The Aim of the act is clearly defined in its preamble  of THE MATERNITY BENEFIT ACT, 1961, which says that “the Act to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits.”

Further this act aims to provide the facilities which a working woman must have in a dignified manner so that she may overcome the “state of motherhood honourably, peacefully, undeterred by the fear of being victimised for force absence during the pre or postnatal period.”-  Municipal Corporation Of Delhi vs Female Workers (Muster Roll) And Amr, AIR 2000 SUPREME COURT 1274.

Additionally, MATERNITY BENEFIT ACT, 1961, s.3(e) ensures the equal opportunity given to the women at the workplace and also protects the rights of the maternity leaves and the benefits. In the case, Nilkanth Mahadeo Badade v. Jitendra Shankarlinge Gowda, Karnataka High Court construed the Maternity Benefit Act as conferring maternity leave rights on a female, who had adopted a child. And Bombay High Court suo-motu proceeded to grant paid maternity benefits to women advocates practicing in the High Court and lower courts as they felt the maternity benefits to women professionals working in all sectors.

Scope of the Act

The act initially did not apply to all over India but by the end of 1972, it was applicable throughout the territory of India. The Act apply to all the organisation factories mines and every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances.(1)-Women and Children, Mamta Rao,4th ed.2018.p at 520)

Important provision of the Act

2. Restriction on employment of, or work by women– The Maternity Benefit Act, 1961 prohibited women from working at particular times for the latter’s health and well-being. Six weeks after delivery or miscarriage, employers cannot recruit women to work and prohibit them from particular tasks during pregnancy that would probably become prejudicial to health, such as heavy lifting or long hours of standing. Women are entitled to full pay maternity leave and cannot be dismissed during the said period. These provisions aim to protect health during pregnancy and during delivery as well as safeguard the work-friendly environment which may be detrimental to the sound development of the unborn child.
   1. In the bare act it is defined as-“ (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). 
   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 as per Section 4.
3. Right to payment of maternity Benefit– The “Right to Payment of Maternity Benefit” under the Maternity Benefit Act, 1961, ensures that women employees are entitled to full wages during their maternity leave. These wages are calculated based on the average daily wage for the period of their absence, up to 26 weeks (as per the 2017 amendment). To claim this benefit, a woman must have worked for at least 80 days in the 12 months preceding her expected delivery date( Section 5). This provision aims to provide financial security to pregnant women, ensuring they can take care of themselves and their new-born without the fear of income loss. Employers are obligated to pay this benefit directly, and failure to comply can lead to penalties. The important case law for the same is Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000) 3 SCC 224 emphasized extending maternity benefits even to temporary or casual female workers if they meet the eligibility criteria. Here the question is that the while calculating the week, Sunday is considered or counted in calculating the salary, this was further clarify by the supreme court in the case called B. shah mentioned above. In this case the Supreme Court held that the term “PO week” signifies a cycle of seven days which include Sunday as well.When we talk about the benefits under this act here comes another act which is called Employees State Insurance Act, 1948 which also provides maternity benefits for all the employers under the factories and any other establishment.

Can women take the benefit under the both acts (THE MATERNITY BENEFIT ACT, 1961 and Employees State Insurance Act,1948)

It is clearly defined under the act that this act does not apply to any factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948 (34 of 1948), apply for the time being. But there are some exceptions to this such as Section 5A and 5B.

Section 5A- “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 (34 of 1948), to 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 5B. “Payment of maternity benefit in certain cases.—Every woman-

(a) who is employed in a factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948 (34 of 1948), apply; 

(b) whose wages (excluding remuneration for overtime work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and 

(c) who fulfils the conditions specified in sub-section (2) of section 5, 

shall be entitled to the payment of maternity benefit under this Act.”

The act clearly says that notwithstanding the Employees State Insurance Act, 1948, women are entitled to get the benefit under the Maternity Benefit Act, 1961 until she becomes entitled to get the benefit under Section 50 of Employees State Insurance Act, 1948.

“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.”

3.  Notice for maternity benefit and payment thereof.

It is mandatory for the woman to give the notice of her pregnancy to get the maternity benefit. However if she fails to do so it does not make her disentitled to get the benefit under the act. But In such cases she has to make the application to the Inspector for the purpose ( S.S.14,15,16 &17).

4. Payment– in case of the death of the women still she is entitled to get the benefit( which is given to the nominee if anyone assign as indicated in the notice and in the case if there is no such person then the legal representatives.

Medical bonus can also be obtained by the Employer under Section 8 of the act.

5. Leave and Nursing breaks – Under the Maternity Benefit Act, 1961, leave and nursing breaks are provided so that working mothers and their babies remain fit and sound. A woman can, under the act, avail of the maternity benefit on her submission of a doctor’s certificate to the effect that she is within six weeks before her expected date of confinement. After delivery, a woman is entitled to 26 weeks of maternity leave, of which eight weeks may be availed before delivery and the remaining after childbirth. For women having two or more surviving children, the entitlement is 12 weeks. The mother, while returning to work, may absorb two breaks for nursing that will be applicable every day until her child is 15 months of age. These breaks are aside from the regular resting intervals.

In case of miscarriage the court said in the case Kallayar Esate jayshree Tea and Induatrial Ltd.v. Chief Inspector of Plantation, held that leave for miscarriage can also be claimed even if the women worker has not worked 160 days in the period of 12 months preceding the date of miscarriage.

6. Prohibition of the Dismissal– no employer can dismiss the working women on the ground of the pregnancy and during the time of her leave.

7. No deduction of the wages– the word wages is define under this act as- ““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— 

• any bonus other than incentive bonus;

• over-time earnings and any deduction or payment made on account of fines; 

• 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

• any gratuity payable on the termination of service.”

When we talk about wages it means the equal salary must be given without any discrimination on the basis of caste, religion and gender. This act provides that no deduction in the wages can be done.

Section 13 is defined as- “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”

8. Penalties and the punishment– The Maternity Benefit Act, 1961 has also drafted penalties for contraventions of its provisions and particularly the provisions relating to maternity leave, maternity benefits, and nursing breaks. They can face punitive consequences in case the employer has failed to deliver any required benefit under the Act or permit any provisions being violated that are protective of pregnant and nursing employees.This includes imprisonment up to one year, with minimum three months, and the penalty amount up to ₹5,000. Moreover, in case a man uses a woman knowingly in violation of the restrictions set by the Act, more liabilities would arise. In case the contravention continues, an additional amount of ₹200 as a daily penalty for every day of the continuing contravention would be also levied. On this score, as discussed above, the liabilities highlighted by the Act also describe its functions in protecting maternity rights as well as holding employers liable (Section 21).

Inspector appointed under this act 

Under the Maternity Benefit Act, 1961, inspectors play a crucial role in ensuring compliance with the Act’s provisions in workplaces. The Inspector is an authorized officer appointed by the government to oversee and enforce adherence to maternity benefit standards, including maternity leave, payment of benefits, and workplace protections for pregnant employees.

The Maternity Benefit Act, Section 16, empowers the Government to appoint Inspectors to investigate and monitor compliance with provisions made under the Act. The powers conferred on such inspectors include the right of entry into any place of work for verification of compliance or for the purpose of investigating complaints and inspecting the records and registers maintained under the provisions of the Act. Section 17 further empowers such Inspectors to take suitable steps for ensuring the provisions of maternity benefit and the rights of women workers under this Act, and for effective supervision and implementation of the protections regarding maternity in employment.

If anyone fails to abide the order of the inspector or fails to produce any document before or being examined and wilfully obstruct the finding and the investigation of the inspector then that person is liable for the imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both (Section 22).

Limitations of this Act

Although the Maternity Benefit Act of 1961 is a significant law that offers mothers vital assistance during their maternity leave. There are restrictions on the Act that need attention. The following are some of the Act’s main limitations:

1. Restricted scope: The Act only covers individuals, Businesses with ten or more employees indicating that women working in smaller businesses could not be protected. 
2. The Act does not provide paternity leave. Allow paternity leave, which is a crucial matter that must be discussed in relation to gender equality at work.
3. Limited benefits: Although maternity leave and other benefits are provided by the Act, the quantity of maternity benefits supplied might not be enough for ladies who could need more assistance throughout their maternity leave. 
4. Ignorance: There is an absence of women’s awareness of their Maternity Benefit Act’s rights, it may cause women to not take advantage of the advantages to which they are entitled. 

Why this act is important and what role judiciary can play in the aspect of this act

The act is very important as the act ensures the health and well-being of the woman and her child. This act is meant to support a women worker to enable her to play her productive and reproductive roles and to remove any discrimination faced by her because of the biological role she is required to play in the family.

But there are many loopholes found by the employers which defeat the purpose and the good intention of the legislature while making this law.

As the employer refuses to employ the married women since they have to pay the maternity benefit during the time of their pregnancy. In some cases the marriage itself becomes the ground of the disqualification while in other cases the pregnancy is the bar of the continuous employment. This type of situation is not only seen in the private companies but also in the government employers. In these types of situations the judiciary plays a very important role to interpret the stature and protect the interest and the rights of the women.

Important Judgment by the Supreme Court in this matter-

In the case Bombay Labour Union v. International Franchies (P) Ltd (1996) 1 LLJ 528 (Bom) the Bombay High Court emphasized the importance of ensuring maternity benefits for female workers and upheld the provisions of the Maternity Benefit Act, insisting that employers comply with the legal rights of women workers, particularly regarding maternity leave And In C.B. Muthamma v. Union of India (1979) 4 SCC 260 , the Supreme Court ruled against discriminatory practices in government services that penalized women for taking maternity leave. The case marked a significant legal victory for gender equality in the workplace, reinforcing that women should not be discriminated against or denied opportunities based on their reproductive rights. Both cases contribute to advancing women’s rights in employment and the enforcement of maternity benefits under Indian law. In these cases the court said that the requirement of being unmarried is unconstitutional.

In another case Air India v. Nergesh Meerza (1981) 4 SCC 335 , the court said that the clause which talks about the retirement of the hostesses on the pregnancy is unconstitutional. This case is a landmark case in Indian labour law regarding gender discrimination at work. The Supreme Court of India declared that the termination based on considerations related to marital status or pregnancy of female employees, such as the Air India air hostesses, was unconstitutional and discriminative under Article 14 of the Indian Constitution that enunciates the right to equality. The airline had dismissed women employees who married or became pregnant, stating that it was a policy. The Court ruled that such policies violated the rights of women since they impose unfair restrictions based on gender. This judgment was significant in protecting the rights of women workers against discriminatory practice in employment. The court also emphasized that penalties should not be accorded to women for their reproductive rights, and in its stead, they should insist on the need to bring an end to the discrimination of gender-based employment policies.

Further this case Neera Mathur v. LIC (1992) I SCC 286, involved the termination of a female employee based on LIC’s policy that required female employees to resign upon marriage. The Supreme Court ruled this policy as unconstitutional, holding it to be discriminatory against women and violating their right to equality and non-discrimination under Articles 14 and 16 of the Indian Constitution. The Court emphasized that a woman’s marital status should not be grounds for termination and that women, like men, have the right to pursue careers without facing discrimination. This judgment reinforced the importance of gender equality in employment policies.

Later the National Maternity Benefit Scheme was modified and a new scheme called Janani Suraksha Yojana was introduced. The central government provides the full funds but it was seem that the state government did not fully used that funds therefore to check on this the Supreme Court directed the central government “1) to ensure that such funds are not utilised for other purpose, 2) to make the amendments to ensure that the benefit of the scheme is not given against the concept of family planning and to mothers who have married despite being below the prohibited age” in the case of People’s Union for Civil Liberties (PUCL) v. Union of India (2009) 16 SCC 3149.

Paternity Benefit and leave

The maternity benefit act, 1961 only talks about the leave and maternity benefit of the women only therefore the act is not gender neutral in nature. Many attempts were made to give the paternity benefits of the man who is going to be the father.

Although there is no such act which solely talks about the paternity benefit in India. Still Central Civil Services (Leave) Rules, 1972, under Rule 43-A, provides paternity leave to male employees of the central government. According to this, Male employees with less than two surviving children are entitled to 15 days of paternity leave. Leave can be availed up to 15 days before or within six months of the delivery of the child. It is fully paid leave, equivalent to the salary drawn during the period.

In the private companies it is seen that the most companies start providing the paternity benefit to the men but they are not binding to do so. Many state governments also have introduced provisions for paternity leave in their respective service rules, often mirroring the Central Civil Services rules.

When we talk about this, is there any legislative draft in existence which talks about the paternity benefit. The answer is no but the attempt was done in 2017 in which The Paternity Benefit Bill, 2017, introduced in Parliament by MP Rajeev Satav, proposed paternity leave for all male employees in organized and unorganized sectors. The bill suggested 15 days of paternity leave, extendable up to three months. However, this bill has not been enacted into law.

Therefore recently there is no such law enforceable in India which gives the paternity benefit to the men.

Conclusion

The Maternity Benefit Act, 1961, is landmark legislation with the specific aim of protecting women’s health, financial security, and dignity in the workplace during motherhood. Under its provisions, no woman shall face discrimination in her employment on grounds of pregnancy or suckling. Women are entitled to leave, benefits, and nursing breaks. Nonetheless, its limited scope-its application is restricted to organizations with 10 or more employees- makes it non inclusive of the majority of women employed in smaller establishments and that in the unorganized sector. More fundamentally, the absence of entitlements for paternity leave clearly indicates that it is still a patriarchal provision, avoiding common parental responsibility and equality at the workplace. These can be corrected only through an integrated package. Also, covering the smaller enterprises, including the unorganized sectors, and making the parental leave gender-neutral would make the Act more contemporary. Increasing the awareness campaigns and enforcing stringent mechanisms are necessary so that women can adequately receive their rights. The judiciary would continue to be proactive in the protection of women’s rights in employment. The government, however, needs to focus on legislations like the Paternity Benefit Bill 2017 in promoting balanced genders in childcare. Above all, a policy to promote inclusivity and equity in workplace matters is key towards attaining real gender equality and human progress.

Frequently Asked Questions:

1. What is the Maternity Benefit Act?
The Maternity Benefit Act is a law in India that provides maternity leave and other benefits to women employees to protect their health and the health of their child during and after pregnancy.

2. Who is eligible for maternity benefits?
Women employed in establishments with 10 or more employees and who have worked for at least 80 days in the preceding 12 months are eligible for maternity benefits.

3. How much maternity leave is provided under the Act?
Currently, women are entitled to 26 weeks of paid maternity leave for their first two children. For the third child and subsequent births, the entitlement is 12 weeks.

4. Can maternity leave be taken before childbirth?
Yes, up to 8 weeks of the 26-week maternity leave can be taken before the expected date of delivery.

5. Are adoptive mothers eligible for maternity benefits?
Yes, adoptive mothers who adopt a child below the age of three months are entitled to 12 weeks of maternity leave from the date of adoption.

6. Are benefits provided for miscarriage or medical termination of pregnancy?
Yes, a woman is entitled to 6 weeks of leave in case of a miscarriage or medical termination of pregnancy.

7. Is there any provision for leave for tubectomy operations?
Yes, a woman is entitled to 2 weeks of leave following a tubectomy (sterilization) operation.

8. Is there a provision for work-from-home?
Yes, after the completion of maternity leave, a woman can avail of work-from-home benefits if the nature of her job allows it, as agreed upon with her employer.

9. Can an employer terminate a woman during her maternity leave?
No, employers cannot terminate a woman during her maternity leave. Any termination due to maternity is considered unlawful.

10. Are there crèche facilities under the Act?
Yes, establishments with 50 or more employees are required to provide crèche facilities and allow women employees to visit the crèche during work hours.

11. How is the maternity benefit calculated?
Maternity benefit is calculated based on the woman’s average daily wage for the period of her actual absence from work.

12. Does the Act apply to the unorganized sector?
No, the Act primarily applies to establishments in the organized sector. However, maternity benefits for unorganized sector workers are covered under other schemes like the Pradhan Mantri Matru Vandana Yojana (PMMVY).

13. Can maternity benefits be availed for surrogacy?
Yes, commissioning mothers in surrogacy arrangements are entitled to maternity leave for 12 weeks from the date the child is handed over to them.

14. What steps can be taken if maternity rights are violated?
Women can approach the labor court or file a complaint with the appropriate labor authority if their maternity rights under the Act are violated.

15. Does the Act also cover prenatal and postnatal medical care?
Yes, the Act mandates employers to provide paid leave for medical check-ups and care before and after delivery.

Other References:

1. Women and Children, Mamta Rao,4th ed.2018.p at 520
2. V.G. Goswami, Labour and Industrial Laws (1993)158)

Written by Team member, Ms. Tanishka Jain .

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