SESSION -11

THE MATERNITY
BENEFITS ACT,
1961
 Maternity Benefit: Indian Scenario
Social stigma 
• A maternity benefit is entitled to every woman and the Employer shall be liable for the payment of
maternity benefit which is to be given to her at the rate of the daily wage average for the period she was
physically absent from the job.
• Post maternity women employees rate has been decreasing day by day and it is important to realize the
significance of women participation which has increased in recent decades, which includes young, middle-
aged, and old employees and thus because of this increasing number it is natural to safeguard their health.
Economic dependence on women is what makes society today so that evils can be removed and women can
take active roles for which Government must aid. Women face discrimination mainly economically and
socially resulting from their biological role in nature.
• To curb these situations there is a strict need for maternity benefits to provide them empowerment so
that they may become self-reliant, economically independent because historically maternity has been
treated as a kind of disability.
• It is important for the law to remove these inequalities so that the section of the population who is half the
working segment of our society, can be uplifted and justice, equality, and fairness be served to all.
 REASONS FOR NEED OF MATERNITY BENEFITS
• Economic dependence of women is what gives rise to their subordination in society
today. Hence to remove such subordination and to lay the foundation of equality
women too must be made economically independent and must take an active role in all
sectors of business today.
• To support such initiative the Government must provide some conditions which are
suitable for the needs of women.
• Among the problems faced by women in the economic sphere of life discrimination
resulting from their 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.
• To safeguard working women and their rights to remain self-reliant and economically
independent, maternity benefits are required. A just social order can be achieved only when
inequalities are obliterated and everyone is provided what, is legally due. When who constitute
almost half of the segment of our society have to be honoured and treated with dignity at places
where they work to earn their livelihood. Whatever be the nature of their duties, their avocation
and the place where they work; they must be provided all the facilities to which they are entitled.
• To become a mother is the most natural phenomena in the life of a woman. Whatever is needed
to facilitate the birth of child to a woman who is in service, 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.
• Historically, maternity has been treated as a state of disability in women workers from
undertaking any work during the few weeks immediately preceding and following child birth.
• With the emergence of the system of wage Labour in the industrial undertakings, many
Employers tended to terminate the services of the women workers when they found that
maternity interfered with the performance of normal duties by women workers. Many women
workers, therefore, had to go on leave without pay during this period in order to retain their
employment.
 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], and right to
improvement in employment opportunities and conditions of the working women [Article 46].
• Article 15(3) of the Indian Constitution empowers the State to make special provisions for
women. The main object of Article 15 (3) is based on “protective discrimination” keeping in
view the weak physical position of women.
• The reason is that “women’s  physical structure and the performance of maternal functions
places her at a disadvantaged position in the struggle for subsistence, and her physical well-
being becomes an object of public interest and care in order to preserve the strength and
vigor of the race.” 
• This provision has enabled the State to make special statutory provisions exclusively for the
Welfare of women.
• Article 21, Right to Life and Personal Liberty is not merely a right to protect one’s body but
the guarantee under this provision contemplates a larger scope. Right to Life means the
right to lead meaningful, complete and dignified life. It does not have restricted meaning. It
is something more than surviving or animal existence.
• The meaning of the word life cannot be narrowed down and it will be available not only to
every citizen of the country. Therefore, the State must guarantee to a pregnant working
woman all the facilities and assistance that she requires while protecting her
employment as well as her own and her child’s health.
• The Directive Principles of State Policy contained in Part IV of the Constitution of India,
under Article 41 requires the State to make effective provision for securing the right to
work and to education and Article 42 requires that the State shall make provision for
securing just and humane conditions of work and for maternity relief.
• “Since Article 42 specifically speaks of “just and humane conditions of work” and
“maternity relief”, the validity of any service rule and of an executive or administrative
action in denying maternity benefit has to be examined on the anvil of Article 42 which,
though not enforceable at law, is nevertheless available for determining the legal efficacy of
the service rule and of the action complained of.”
SESSION-12
 INTRODUCTION
• The Maternity Benefits Act, 1961 is a legislation that protects the employment of women at
the time of her maternity. It entitles women employees of ‘maternity benefit’ which is fully
paid wages during the absence from work and to take care of her child. The Act is
applicable to the establishments employing 10 or more employees. 
• The Maternity Benefits Act, 1961 has been amended through the Maternity (Amendment)
Bill 2017 which was passed Rajya Sabha on August 11, 2016 and in the Lok Sabha on March
09, 2017.
• Further, it received assent from the President of India on March 27, 2017. The provisions of
the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”) came into effect on April
1, 2017, and the provision with regard to crèche facility (Section 111 A) came into effect
with effect from July 1, 2017.
• The Maternity Benefit Act is one of the best steps taken by the Government to protect
women employment while they experience their Maternity. Maternity Benefit is basically
the benefit of getting full paid absence from work. This benefit is given to the woman with
the motive to help her in taking care of her child.
 Applicability 
• Upon reading Section 2 along with Section 3 (e) of Maternity Benefits Act, 1961 (“Act”), it
can be safely concluded that the Act is applicable to establishments such as factories,
(“factory” as defined in the Factories Act, 1948), mines (“mine” as defined in the Mines
Act, 1952) and plantations (“plantation” means a plantation as defined in the Plantations
Labour Act, 1951). 
• The Maternity Benefit Act also applies to establishments belonging to Government and
establishments wherein persons are employed for the exhibition of equestrian, acrobatic
and other performances as per section 2(b).
• The said Act is also applicable to every shop or establishment defined under law, wherein
ten or more persons are employed on a day during the preceding twelve months and
which is applicable in relation to shops and establishments in a particular state.
Eligibility 
• A woman must be working as an employee in an establishment for a period of at least 80
days in the past 12 months to be entitled to maternity benefit under the provisions of the
Maternity Benefit Act. 
Object of the Act
• The Object of the Act is to protect the dignity of motherhood and the dignity of a new
person’s birth by providing for the full and healthy maintenance of the woman and her
child at this important time when she is not working.
Benefits Under The Act:
Cash Benefits
• Leave with average pay for and up to eight weeks before the delivery
• Leave with average pay for eighteen weeks after the delivery.
• Total duration is 26 weeks and can be availed appropriately by the employee, based on
her requirement.
• A medical bonus Rs 3500 (amended Rs 20000), 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 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.
• 04 breaks have been proposed in the amended provision. However, Rules have not been
notified for implementation
• 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.
 To summarize
• 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.3500 extending to Rs. 20,000.
• 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 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. 50000 on the first instance for
Employer, in the event of any failure to provide maternity benefits to female employees.
Rajiv Gandhi National Crèche Scheme for the Children of Working Mothers- 
• This scheme is implemented by three Governmental bodies i.e. the Central Social Welfare Board, Indian
Council for Child Welfare and Bhartiya Adim Jati Sevak Sangh for collecting user charges of rs. 20/- per
month from BPL families and Rs. 60/- from other families.
• To meet the growing need for more crèches, the National Crèche Fund was set up in 1993–94 for making
assistance available to voluntary organisations/mahila mandals (women’s groups) through interest earned
from the corpus fund to convert existing AWCs (preschool centers) into AWC-cum-crèche centers.

CASE LAWS

Chandrika v. Indian Red Cross Society-

• Here, the Petitioner was terminated while she was on maternity leave. The relief of reinstatement and
consequential benefits were denied to her.
• Also, there was no evidence to show that the Petitioner had received the communication. The Court held
that the Petitioner’s services had been terminated illegally and she should be reinstated with the service
and avail the necessary benefits.
Municipal Corporation of Delhi v. Female Workers-
• In this case female workers who were treated as temporary employees and employed on
muster roll claimed that they should also be entitled to maternity benefit.
• The court held that as per Articles 39 and 42 of the Directive Principles of the State Policy
a woman 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 fates.
• 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.
Shah v. Presiding Officer, Labour Court, Coimbatore and Ors-
• In this case, the question was whether in calculation of the maternity benefit for a period
covered by Section 5 Sundays being wage-less holiday should be excluded?
• The Apex Court ruled that Sunday must also be included and read in light of Article 42
stating that the Constitution was intended to enable the woman worker not only to
subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency
as a worker and maintain the level of her previous efficiency and output.
Air India v. Nergesh Meerza-
• In this case, Air India Corporation (AIC) Act and Indian Airlines Corporation (IAC) Act
formulated certain regulations 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 in case of ‘first
pregnancy’.  
• The Court held it to be “grossly unethical” and as smacking of “deep rooted sense of utter
selfishness at the cost of all human values” as compelling to terminate services if a
woman becomes pregnant would amount to forbidding her not to have any children.
• It has been stated that mere pregnancy should not be considered to be a disability but
a natural outcome of marriage and any distinction made on the ground of pregnancy is
extremely unreasonable and manifestly arbitrary. 
 CONCLUSION
• 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. But there are certain shortcomings of the Act which needs
to be looked upon.
• 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.
• Within this, the duration of post natal period must be extended keeping in mind factors like rise in
number of late marriages, cesarean births, nuclear families and increasing urbanization. In the 44th
Indian Labour Conference, held in February, 2012, it has been recommended that Maternity Leave
under the Maternity Benefit Act be increased from the present level of 12 Weeks to 24 Weeks.
• Secondly, The Maternity Benefit Act, 1961 does not comply with international standards and there
are huge gaps in its implementation as the entire responsibility of the Act rests with the
Employer. Placing the entire burden of providing maternity benefit on the Employer is akin to
giving him an incentive to not provide any benefit at all.
• Thus, the cost of maternity protection should be shared amongst different agencies through
some form of social insurance scheme or general taxation.
 Comparison of existing laws and Code on Social Security, 2020
Provision Act Existing Code on Social Security
Benefits provided by Maternity Benefit Acts, 1961 Benefits provided by the Mat
the Maternity Benefit Benefits Act continued here
Act
Wages Maternity Benefit Acts, “wages” means all remuneration paid or payable Common wage definition appli
1961 in cash to a woman, if the terms of the contract these provisions
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
foodgrains 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;
 Comparison of existing laws and Code on Social Security, 2020
Provision Act Existing Code on Social Security
Maternity Maternity • Maternity leave of 26 weeks. • No Change
leave Benefit • Female employees with at least two children continue to
Act, 1961 be entitled to 12 weeks of maternity leave.
• Maternity leave of 12 weeks for female employees
adopting a child below 3 months and for
commissioning mothers.
Insurance and Maternity • A woman is entitled to maternity benefit at the rate of • No Change - Insurance and maternity benefits
maternity Benefit her average daily wage in the three months preceding mutually exclusive.
benefits Act, 1961 her maternity leave. However, the woman needs to
have worked for the Employer for at least 80 days in • Any women employee eligible for availing
the 12 months preceding the date of her expected maternity benefit under Chapter IV (Employees
delivery. State Insurance Corporation) shall not be entitled
• Is applicable to factories, mines, the circus industry, to claim maternity benefit from her Employer
plantations and shops and establishments employing at under Chapter VI (Maternity Benefit)
least 10 employees (“Covered Establishments”),
except female employees who are covered under the
Employees' State Insurance Act, 1948 (“ESI Act”)
 Comparison of existing laws and Code on Social Security, 2020
Provision Act Existing Code on Social Security
Restriction on nature Maternity Benefit Bar on employing women for six weeks No change
of work Act, 1961 post delivery, restriction on nature of
work.

Basis of calculation of Maternity Benefit Benefit calculated on average daily wages No change
Benefits Act, 1961
Nursing breaks and Maternity Benefit Nursing breaks and crèche facility No change
crèche facility Act, 1961 Provision of common crèche facility
 Comparison of existing laws and Code on Social Security, 2020
Provision Act Existing Code on Social Security
Employer obligations and Common to all • Timely deposit of contributions / filing No Change
compliance requirements Subsumed & of returns
Repealed Acts • Issuance of wage slips in prescribed
format
• Display of notices, benefits available
to employees
• Intimation of vacancies, accidents
• Creche facility – provision /
maintenance
• Payment of compensation
• Maintenance of records and registers
Failure to pay/ deposit EPF & MP Act • Provision of Damage corresponding to • Fine INR 100,000 and imprisonment
employees contributions ESI Act amount of delay between one to three years
deducted from employees’ • Provision of Penal Interest • For second and subsequent offence:
wages • No provision of imprisonment Imprisonment up to 2 years and fine of 2
lakhs
Non/ improper maintenance Common to all • First instance – Fine INR 50,000 and
of records • Failure to pay Subsumed & imprisonment up to six months
any contribution liable to be Repealed Acts • Second and subsequent instances: Fine of
paid under the Code INR 3,00,000 and imprisonment between two
to five years
 Comparison of existing laws and Code on Social Security, 2020
Provision Act Existing Code on Social Security
Contravention of any other Common to all • First instance: Fine up to INR 50,000 and imprisonment
provision Deducts Employer’s Subsumed & of up to One year Second and
contribution, fails to pay gratuity, Repealed Acts • subsequent instances: Fine of INR 300,000 and
maternity benefit, cess, fails to imprisonment between two to five years
produce records
Non-compliance of the provisions Common to all Fine up to INR 50,000 and/or imprisonment of 1 year;
of the Code after the timelines Subsumed & • No opportunity provided to the Employer if violation of
under the directions from Inspector Repealed Acts the similar nature is repeated within a period of 5 years
cum Facilitator from the first instance
Fails to submit returns, obstructs Common to all • Fine up to INR 50,000
executive officer, fails to pay Subsumed & • Imprisonment up to six months
compensation, send a statement of Repealed Acts
fatal accident/ Dishonestly makes a
false return
 Comparison of existing laws and Code on Social Security, 2020
Provision Act Existing Code on Social Security
Benefits for Common to all No such provisions By the Central government
Unorganised Subsumed & • life and disability cover
Workers Repealed Acts • health and maternity benefits
• old age protection
• Education
• any other benefit determined by the Central Government
By the state government
• provident fund
• employment injury benefit
• housing
• educational schemes for children
• skill upgradation of workers
• funeral assistance
• old age homes
Benefits for Gig Common to all No such provisions By the Central government
/ Platform Subsumed & • life and disability cover
Workers Repealed Acts • accident insurance
• health and maternity benefits
• old age protection
• crèche
• any other benefit determined by the Central Government
THANK YOU