Paper on

THE INTEGRATION OF MATERNITY AND MENSTRUATION RIGHTS

FOR WOMEN UNDER THE CONSTITUTION OF INDIA

Damini Mahanand

Student, Kalinga University, Raipur

ABSTRACT

This paper aims to enlighten people’s mind on the need of maternity and menstrual rights
towards women in India. India, though has drafted various policies for both the pregnant as well
as menstruating women but yet it is lacking somewhere for the proper care and hygiene of
women. Specifically, in the working sector women face several difficulties due to their
menstruation and pregnancy. India being one of the developing countries, people are shifting
towards the working sector and amongst these people several are women. Female bodily
autonomy and needs are different from a male, therefore there needs to be certain changes in the
industrial policy to fit the female needs and to increase their productivity. This paper will
highlight on the importance, needs and various statutes and policies drafted on behalf of the
women's Maternity and Menstruation rights.

KEYWORDS
Maternity, Pregnancy, Women, Female, Menstruation
INTRODUCTION

The integration of maternity and menstruation rights for women in India is a crucial aspect of
fostering gender equality and ensuring the well-being of women in the country. Maternity rights
and menstruation rights are interconnected, reflecting the broader spectrum of reproductive
health and the societal norms that influence women's lives.

Maternity freedoms in India have taken critical steps with the execution of regulations, for
example, the Maternity Benefit Act, which awards women a paid leave of 26 weeks. While this
is a positive step, challenges continue. Numerous ladies, particularly in the rural area, stay
ignorant about their freedoms or face segregation while affirming them. To address this, there is
a requirement for boundless mindfulness crusades and instructive drives to enable ladies about
their maternity freedoms.

In addition, working environment strategies should be adjusted to oblige the exceptional

requirements of pregnant and lactating ladies. Adaptable working hours, assigned nursing
regions, and backing for childcare offices can add to a more comprehensive workplace. By
guaranteeing that women don't confront proficient repercussions for embracing parenthood, India
can support a labor force that values both profession and day to day life.

Period privileges, then again, have generally been covered in disgrace and quiet. Menstruating
women frequently face separation, restricted admittance to cleanliness items, and deficient
disinfection offices. To handle this, there is a squeezing need for exhaustive feminine cleanliness
training in schools and networks, testing age-old restrictions and advancing open discussions
about menstruation.

Likewise, the public authority ought to focus on the arrangement of reasonable and open
menstrual hygiene products. This guarantees the respect of women as well as addresses
wellbeing concerns connected with the utilization of unsanitary other options. Initiatives such as
providing funding for hygienic products or making them free of charge in public areas and
schools have a significant impact on the lives of women, especially those who belong to
economically disadvantaged networks.

Coordinating maternity and period privileges likewise requires a change in perspective in

cultural mentalities towards women regenerative wellbeing. Social standards frequently
propagate hurtful generalizations, seeing women essentially from the perspective of their
regenerative abilities. Schooling and mindfulness missions ought to challenge these
generalizations, underscoring that a woman’s worth stretches out long ways past her job in the
family and society.

Moreover, the medical care framework should be fortified to give far reaching maternal and
feminine wellbeing administrations. This incorporates open pre-birth care, post pregnancy
support, and addressing difficulties connected with menstrual cycle. By putting resources into
medical services framework and preparing medical care experts, India can guarantee that women
get the consideration they need all through their conceptive excursion.
MATERNITY LEAVE AND CHILDCARE

Pregnancy is of a sacred nature where a body has two souls. A mother is said to be the true
nurturer of a baby. Pregnancy is a stage where a woman needs adequate care as anything done by
her will affect her baby as well. Pregnancy is a journey for every mother to cherish and take due
care of. Every mother wishes to adore her pregnancy and her baby. For the particular
significance of nurturing the Motherhood the Indian Government has sanctioned the Maternity
Benefit Act,1961 and has made several amendment upon the Act.

Maternity Benefit Act in India is covered under the ambit of “Article 42 of the Constitution of
India”1 which states that “the State shall make provision for securing just and humane conditions
of work and for maternity relief.”

As per the increase in number of women in the working sector, there is a need for suitable
working conditions for women at the workplace. Pregnancy is a concern for a working woman.
As most women think that their pregnancy will leave a strain on their working field and will also
lead to the termination of their work. To resolve this problem Pregnant women are entitled to
maternity leave under the Maternity Benefit Act.

Maternity leave refers to the period a pregnant working woman seeks from her employer for
nurturing her motherhood and the initial stage of her baby. Maternity Leave under the Maternity
Benefit Act provides the pregnant woman for a job secure paid leave which allows the mother to
share a bond with her baby without worrying for her job and economic condition.

Maternity benefits are essential in the life of a pregnant women as it ensures her economic
condition, job security and her social and motherly duties towards her child. Maternity benefit
can be availed by any working women working under any organisation with 10 or more
employees after she submits all the necessary documents.

1 INDIAN CONSTITUTION, Art. 42

IMPORTANCE OF MATERNITY LEAVE

In the post period women were in a constant worry regarding their pregnancy and job. To
safeguard their job during pregnancy, the Maternity Benefit Act 2 was sanctioned. This Act
enables the women to lead a prosperous pregnancy journey. In the case of “Neetu Bala v Union
of India”3 it was held refusal to hire someone purely on the basis of the pregnancy was violative
against Article 144, Article 165, and Article 42 6of the Constitution of India. It was decided that
“the woman’s right to employment and her ability to procreate are both violated when she is
forced to choose between her pregnancy and her career.”7

Maternity leave in India offers pregnant ladies and mothers' downtime from work to really focus
on their well-being and prosperity during pregnancy, labor, and the post pregnancy time frame. It
likewise promote of maternity leave. By providing maternity leaves during the women’s
pregnancy, it makes the organisation more reliable for the women and due to which the women
start working more efficiently for the sake of the organisation. “What goes around comes
around” this quote signifies that if the employer will think for the betterment of their employee,
then definitely the employee will revert back enthusiasm for his/her work.

In India Maternity Benefit Act provides for a period of 26 weeks, however, the length of the
leave wholly depends upon the mother and her health condition. Maternity leave allows the
women to take care of herself in the proper manner. During pregnancy women goes through
various physical, emotional and hormonal changes. Maternity Benefit Act allows the women to
shift her focus from the work field to her physical and emotional health and nurture her baby.

Additionally, maternity leave is not only made available to women who are pregnant but to
women who face any abortion or miscarriage. Maternity leaves are also available to the women
who give birth to a child through the process of surrogacy. In the case of “K. Kalaiselvi v

2 Maternity Benefit Act, 1961

3
Neetu Bala v Union of India 2016 SCC OnLine P&H 602
4 INDIAN CONSTITUTION, Art. 14
5
INDIAN CONSTITUTION, Art. 16
6 INDIAN CONSTITUTION, Art. 42
7 Neetu Bala v Union of India 2016 SCC OnLine P&H 602
Chennai Port Trust” 8the petitioner argued for the same maternity rights for surrogate mothers as
available to adoptive mothers. The Supreme Court further stated, “Maternity Benefit Act widens
the concept of motherhood by including all the women who either give birth to a child
biologically or through surrogacy or by adopting.

STATUTES FOR MATERNITY RELIEFS

Article 14

Article 149 states “the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. 10

Article 14 gives the right to a woman to bear a child and solely on the base of pregnancy one
cannot terminate the employee’s working status. In the case of Air India v. Nergesh Meerza11,
Air India and Indian Airlines airhostess contested the validity of the employment laws that
allowed for termination of employment upon first pregnancy. As it was arbitrary and unjustified,
the Supreme Court invalidated this regulatory obligation, infringing against “Article 14 of the
Indian Constitution.”12 Rather the Court approved for a change where the air hostess would retire
at the pregnancy of her third children.

Article 15

Article 15 states the prohibition of discrimination on ground of religion, race, caste, sex or place
of birth13 and also states that the state can make any special provision for women and children 14.

In “Municipal Corporation of Delhi v. Female Workers (Muster Roll)”15 ,the Muster Roll
workers were denied of the maternity leave stating that they were regular wage workers. The

8
K. Kalaiselvi v Chennai Port Trust 2013 Mad LJ 493
9 INDIAN CONSTITUTION, Art. 14
10 INDIAN CONSTITUTION, Art. 14
11 Air India v Nergesh Meerza (1981) 4 SCC 335.
12 INDIAN CONSTITUTION, Art. 14
13
INDIAN CONSTITUTION, Art. 15 cl. 1
14
INDIAN CONSTITUTION, Art 15 cl. 3
15
Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000) 3 SCC 224
court relying on Article ,14 and Article 15 of the Constitution of India dismissed the Special
Leave Petition of the Municipal Corporation of Delhi and declared that all female workers are
entitled to maternity leave before and after their pregnancy.

Article 16

Article 1616 states “there shall be equality of opportunity for all citizens in matters relating to
employment and appointment to any office under the state”17 and “no citizen shall, on grounds
oy of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for,
or discriminated against in respect of, any employment or office under the state.”18 Solely
terminating the women’s working status or demoting her from her previous post on the basis of
her pregnancy would violate to Article 16 and be termed as discrimination on the workplace in
matters relating to gender.

Article 21

Article 2119 provides for the “Right to Life and Personal Liberty”20. A woman has a Right to bear
a child under the ambit of Right to Life. The Kerala High Court in the case of “Mini K.T. v. Life
Insurance Corporation of India”21 held that a female employee’s status, the protection of her
dignity and self-respect under Article 2122, and the Indian Constitution’s guarantees of equality
and non-discrimination in employment matters under Articles 14 to 16 would all be violated if
she were to be fired for missing work because of family obligations.

Article 42

16 INDIAN CONSTITUTION, Art. 16

17
INDIAN CONSTITUTION, Art. 16 cl. 1
18
INDIAN CONSTITUTION, Art. 16 cl. 2
19 INDIAN CONSTITUTION, Art. 21
20
INDIAN CONSTITUTION, Art. 21
21
Mini K.T. v. Life Insurance Corporation of India 2017 SCC OnLine Ker 41588.
22 INDIAN CONSTITUTION, Art. 21
Article 42 inter alia provides “provision for just and humane conditions of work and maternity
relief.”23 The Maternity Benefit Act, 1961 24 comes under the ambit of this particular Article.

Maternity Benefit Act, 1961

Maternity Benefit Act lays down the rules, regulations and procedure regarding maternity leave
for the female employees. 25Maternity Benefit Act provides all the terms and conditions for a
woman to attain the Maternity benefits from her employer. Maternity benefits can be availed by
all women who are pregnant, adopting a child, experiencing miscarriage, experiencing
postpartum or any mother who is bearing a child through surrogacy or commissioning. All
mothers can avail the benefit of paid maternity leave for a period of 26 weeks from her employer
if the woman worked for her employer for 80 days in the 12 months preceding the date of her
leave. Maternity Benefit Act provides a major benefit of Creche to all the working mothers. The
Act states that the Creche facility should be constructed within the local limit of 500 meters from
the organisation the woman is working under at. However, the Maternity Benefit Act provides
benefits to only those female employees who are employed under any organisation with 10 or
more employees.

23
INDIAN CONSTITUTION, Art. 42
24 Maternity Benefit Act, 196
25 Maternity Benefits Act, 1961, S. 5, Acts of Parliament, 1961 (India)
MENSTRUATION

Menstruation is a natural process occurring on every girl or woman who has reached her age of
puberty. The process of the uterus discharging blood through the vagina is known as
menstruation. Hormones are responsible for Menstruation. The Pituitary gland present in the
brain and the ovaries which are a part of the reproductive system are responsible for creating and
releasing certain hormones which causes lining of the uterus. The uterus lining is created to help
the female body for pregnancy, when the egg does not get fertilised the uterus lining starts to
shed resulting in Menstruation.

In the early period, Menstruation was considered a taboo. In India a mere mention of the topic
was referred as dirty and impure. “The origin of this myth dates back to the Vedic times and is
often been linked to Indra's slaying of Vritras. For, it has been declared in the Veda that guilt, of
killing a brahmana-murder, appears every month as menstrual flow as women had taken upon
themselves a part of Indra's guilt”26 . As a natural process for the girls, menstruation was looked
at with eyes full of hatred. Menstruating girls were treated as impure in the early stage and they
were forced to live separately from the family till the day she menstruates. She was not even
given basic amenities such as clean water, proper sanitation and in some areas the girl
menstruating was forced to follow a strict diet. Menstruating girls were not allowed to enter the
kitchen or any place of worship. Moreover, she was not allowed to touch anything which was
considered pure as the mentality was that the menstruating girl would turn the pure into impure.

With the evolving society, the myths regarding menstruation have changed. People have started
to think and talk openly regarding the topic. The society has started to consider menstruation as a
unique phenomenon occurring to females and have started to take concerns regarding a
menstruating female. However, there are still some fields where menstruation is considered as a
taboo and to overcome such issues there is a need for Menstruation Rights for the females in
India.

NEED FOR MENSTRUAL RIGHTS

“Human rights are rights that every human being possesses as a result of his or her human
dignity.”27 Menstruation is intrinsically related to human dignity 28. Menstruation is related to
human dignity as menstruation demands proper sanitation and basic health care which covers
Right to Life. Discrimination on the basis of gender, poverty, humanitarian crises, harmful myths
about periods can all turn menstruation as a deprived phase and a stigma for the girl experiencing
it which will automatically hinder her status in the society. There are several factors due to which
there is a need for menstruation rights in India, as such: -

• Prohibition from public life: One of the factors is that women are excluded from the
society during their menstrual cycle. Even in the modernised world, in the urban sector

26
Menstruation related myths in India: strategies for combating it-PMC-NCBI ,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4408698/#:~:text=For%2C%20it%20has%20been%20declared,in%
20normal%20life%20while%20menstruating (last visited Nov. 16, 2023)
27
INIDIAN CONSTITUTION, Art. 14
28
Menstruation and human rights- Frequently asked questions
https://www.unfpa.org/menstruationfaq#:~:text=The%20right%20to%20non%2Ddiscrimination,activities%20also%
20perpetuate%20gender%20inequalities (last visited Nov. 16, 2023)
 girl’s experiencing their menstrual cycle are not allowed to go to the places of worship as
they are considered impure. Comparatively, the situation in the rural areas is way worse
than the urban sector: girls experiencing menstruation are not allowed to go to worship
places nor are they allowed to enter the kitchen. Even menstruating girls are restricted
from touching various food items as the stigma considers that it will spoil the food. Due
to the societal stigma most of the females themselves are hesitant to enter the worship
place or kitchen during their menstrual cycle. Together these activities hinder women’s
participation in public life.
• Disadvantage in grabbing opportunities:- Poverty, humanitarian crises and the social
stigma hinders women to fetch up to the opportunities present in the working
environment. Many females drop out of school at early age due to period poverty at the
school environment 29 and working women hesitate to join the workforce during their
menstrual cycle. Which results in them lacking at fetching up opportunities.
• Obstruction to sanitation and well-being: -Poverty and humanitarian crises can force
women to use unhygienic methods for the menstrual blood leading them to various
infections at the intimate area. In today’s world there are several females who still use a
rag of cloth for their menstrual blood which leads to rashes and infection. In the rural area
females often use dirtied piece of cloth and dried leaves for their menstrual blood which
often leads to infection and bad odor.

To overcome the above-mentioned issues there’s a need for certain policies and framework. The
Indian Government has drafted the National Menstrual Hygiene Policy, 2023.

NATIONAL MENSTRUAL HYGIENE POLICY, 2023

The policy’s objective is to successfully address the need of every one of the individuals who
menstruates and advance a positive change inside the general public. Additionally, the policy

29
Menstrual Health and Hygiene, https://www.worldbank.org/en/topic/water/brief/menstrual-health-and-hygiene
(last visited Nov. 16, 2023)
will act as an impetus to promote awareness question social standards and inspire a public that
welcomes menstruation hygiene as a natural and typical component of life.

• Vision:- All women, girl and people who menstruate can encounter period in a way that
is safe, healthy and liberated from shame.
• Goal:- Each person who menstruates can avail hygienic means of menstrual resources in
order to improve their quality of life and realize their maximum potential in health,
wellbeing, education, economic and other aspects.
• Objectives:-
i. To guarantee that women, girls and people who menstruate approach protected,
sterile and quality menstrual products and disinfection offices.
ii. To establish an empowering climate for individuals including women, girls, men
and boys so they approach the right knowledge upon the menstrual cycle, and to
address myths, stigma and orientation issues around period.
iii. To give a coordination instrument among various Central Government Ministries,
States/ UTs and relevant stakeholders and sectors.
iv. To establish a 'feminine accommodating climate' in all settings including homes,
schools/instructive foundations, work environments and public spaces.
v. To cultivate imaginative practices with social business visionaries and the
confidential area.
vi. To reinforce ecologically manageable menstrual waste disposal.
• Target:- The policy covers the needs of all those people menstruate in rural, urban and
tribal areas. The policy includes people in educational institutions, workplaces, healthcare
settings and other public places. Menstruating people include all adolescent girls, women,
people with special needs as such disabled people, trans genders, orphans, destitute
people.

SUGGESTIONS AND RECOMMENDATIONS

Menstruation and pregnancy are two distinct and natural events that exclusively affect women.
Females experiencing Maternity and Menstruation suffer from various hormonals and physical
changes. A woman’s body is in charge of both the growth and health of her unborn child during
pregnancy. Women need supplement care during the pregnancy as well as during their
menstrual cycle. Various women suffer from ovarian cysts, endometriosis, dysmenorrhea, etc
during the menstrual cycle. Additionally, female bodily autonomy requires sufficient hygiene
specifically during these phases. To address all these issues policies should be framed. Policies
as to provide adequate hygiene products to the females as well as other benefits to sustain there
pregnancy and menstruation.

Apart from the hygiene issues there’s a need for sex education amongst the youth. In the recent
case where a brother killed his menstruating sister mistaking her for having an affair with
somebody30 clearly indicates that in India not many people are aware of the fact that a female
body goes through various changes. To address this issue, the government should frame policies
to include sex education in the school level. Adopting a sex education curriculum in schools will
increase young awareness of concerns relating to their bodies and will also foster gender
equality.

There’s a need for maternity and menstrual benefits for women at the professional level. Many
women quit their employment due to their pregnancy and Menstruation. As they are worried that
in the working environment they won’t be provided with sufficient care. Due to which women
has to make hard choices regarding their health and employment. Maternity Benefit Act provides
for paid leave for women but there’s no provision for leave for a menstruating female. A
menstruating female experiences varying level of physical discomfort and pain. During such
time women may find difficult to address their work efficiently. In India, only Bihar and Kerala
are the two states which provides for menstrual leave . Also, in 2017 a bill for menstrual leave
was presented in the Parliament which was not tabled for the discussion. Subsequently in 2022
the bill was again presented in the parliament which was withdrawn shortly.31 In 2023, a PIL

30
Girl Gets Her 1st Period, Brother Feels It’s Affair And Kills Her In Thane,
https://timesofindia.indiatimes.com/city/thane/girl-gets-her-1st-period-bro-feels-its-affair-and-kills-her-in-
thane/articleshow/100085343.cms (last visited Nov. 17, 2023)
31
Looking Beyond the Law: The Case of Menstrual Leave in India,
https://www.scconline.com/blog/post/2023/03/07/looking-beyond-the-law-the-case-of-menstrual-leave-in-india/
(last visited Nov. 17, 2023)
seeking menstrual leave 32was again presented to the Supreme Court however the court disposed
the bill suggesting that the Union Ministry of Women and Child Development may take
appropriate actions regarding the bill. The center should draft policies for the employers to grant
menstrual leave to their employees. “Allowing female employees to take necessary breaks during
their menstrual cycle can improve their productivity and capacity to concentrate on work-related
tasks.”33

CONCLUSION

Maternity and Menstruation both are an admiration for a woman. A woman faces various
challenges during her pregnancy and menstruation. Menstruation has often been considered as a
taboo in the society, but with evolving world and a world with gender neutrality, there’s a need
for benefits for women during their pregnancy and Menstruation. Maternity and menstruation
benefits boosts a woman’s morale to strive in the society and boosts her productivity. By
providing such benefits it will lead to a gender neutral, economically strong and a liberal society.

32
Supreme Court Refuses To Entertain Plea Seeking Menstrual Leave, Says Matter Falls In Policy Domain,
https://www.livelaw.in/top-stories/supreme-court-refuses-to-entertain-plea-seeking-menstrual-leave-says-matter-
falls-in-policy-domain-222395 (last visited Nov. 17, 2023)
33 Looking Beyond the Law: The Case of Menstrual Leave in India

https://www.scconline.com/blog/post/2023/03/07/looking-beyond-the-law-the-case-of-menstrual-leave-in-india/
(last visited Nov. 17)