THE MATERNITY

BENEFIT ACT, 1961

By: Prof. Srujana Bej
Labour Law II
Female Labour Force Participation in India
 Utilitarianism The Why
Dignity Market
Efficiency

Administrability
 The “Why” Utilitarianism
Article 42 - Provision for just and humane
conditions of work and maternity relief Dignity Market
The State shall make provision for securing just Efficiency

and humane conditions of work and for maternity Administrability

relief.
Articles 39(e) & (f)
In Municipal Corporation of Delhi v. Female Workers (Muster Roll), the
Supreme Court held that:
“The Maternity Benefit Act, 1961 aims to provide all the facilities to a working
women in a dignified manner, so that she may overcome, the state of
motherhood honorably, peacefully, undeterred by the fear of being victimized
for forced absence during the pre or post natal period”.
 International Conventions
The Universal Declaration of Human Rights,
1948 declares that motherhood and childhood
are entitled to special care and assistance.

Right to maternity protection enshrined in

International Human Rights Instruments
(International Covenant on Economic, Social
and Cultural Rights 1966)

International Labour Conventions - NOT RATIFIED

BY INDIA
1. The Workers with Family Responsibilities
Convention, 1981 (C-156)
[family responsibility is not a valid reason for
termination]
2. The Maternity Protection Convention (Revised), 2000 (No. C-18
3)

Maternity leave of at least 14 weeks [6 weeks compulsory post-natal

leave]
Cash benefits to women on maternity leave
“at a level which ensures that the woman can maintain herself & her
child in proper conditions of health and with a suitable standard of
living”
If based on previous earnings, at least 2/3rd of her previous earnings
Entitled to adequate benefits out of social assistance funds
Unlawful for an employer to terminate the woman’s employment
during her pregnancy or maternity leave except on unrelated grounds
A woman is guaranteed the right to return to the same/ an equivalent
position paid at the same rate at the end of her maternity leave.
Exercise: How many of these provisions does our legislation enshrine?
 Vocabularies
1961 Act
Prenatal Post natal
6 weeks period period
before
EDD

ESTIMATED
DATE OF
DELIVERY

12 weeks
 Vocabularies

2017 Amendment & Social Security Code

Post natal
Prenatal period
8 weeks
period
before
18 weeks
EDD
after EDD

Estimated
date of
delivery

26 weeks
 What does the MBA Act provide?
1. Provides paid maternity leave
2. Relief from arduous work in the prenatal period
3. Prohibition from termination of employment

Other benefits:
1. Medical bonus
2. Leave for miscarriage
3. Leave for illness arising out of pregnancy/delivery/miscarriage
4. Nursing breaks
5. Prevention of contracting out
 Changes in 2017 Amendment Act
1. Period of maternity leave extended to 26 weeks (8 weeks prenatal)
2. Adopting + commissioning mothers - 12 weeks of leave after the handing
over of the child
a. Adoptive mothers - <3 months of age for child
b. Commissioning mother - biological mother who uses her egg to create
an embryo implanted in other woman
3. Crèche facility
4. Prior Intimation [compare with s. 19 in the 1961 Act]
5. Work from home option
 Application

1. Independent of number of employees - all factories, plantations,

mines, and circuses
2. Dependent on number of employees [10/+] - shops and establishments
[during preceding 12 months]
3. State Govts can extend the Act to any establishment/class of
establishments with the Union govt’s approval (after 2 month’s notice)
4. Employees of establishments under ESI Act are given maternity
benefits by ESIC.

Less than 1% of all women in the labour force in India benefit from the
law.
 Definitions

1. App. Govt - State [except for mines and circus]

2. Woman - woman employed, directly or through any agency
i. definition - very wide.
ii. Includes casual, muster roll or contract labour.
iii. the principal employer is also liable to pay maternity benefit to a
woman employee employed through a contractor.
3. Maternity benefit - payment in S. 5(1)
4. Child - includes a still born child
5. Wages - includes cash allowances, incentive bonus, money value of
concessional supply of foodgrains
6. Employer - S. 3(d)
 S. 6 - Maternity leave
Entitles pregnant women to paid leave: 6 weeks before + after EDD (1961 Act)
A pregnant woman may give written notice to her employer stating that
the maternity benefit may be paid to her/her nominee [with mention of
date].
When employer receives notice, they must permit leave until the expiry
of 6 weeks after day of delivery.
Section 4 [S. 59 of SS Code]
An employer shall NOT knowingly employ a woman for 6 weeks
immediately following EDD/miscarriage [or MTP]
No woman shall work during the 6 weeks immediately following day
of delivery/miscarriage
 S. 4 - Prohibition of work
Post natal period - Mandatory leave
Pre natal period - Application by the woman for relief or reassignment

Section 4(3): [read with S. 13]

When a pregnant woman makes a request, she shall not be compelled by
employer to do any work
a. Arduous [defined in SS Code]
b. Involves long hours of standing
c. likely to interfere with her pregnancy or the normal development of the
foetus
d. likely to cause her miscarriage or otherwise to adversely affect her
health.
 S. 4 - Prohibition of work
Post natal period - Mandatory leave
Pre natal period - Application by the woman for relief or reassignment

Section 4(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.
 When is maternity benefit paid?

Prenatal period - advance payment [proof that woman is pregnant]

Postnatal period - paid within 48 hours of receiving proof that woman has
delivered the child
Exception - forfeiture by working in any other establishment during period
of maternity leave

Woman can give notice even after delivery - “as soon as possible”
The failure to give notice does not disentitle a women to MB and in such
cases.
The Inspector may suo motu or on application made by the woman, order
the payment of maternity benefits.
 Maternity Benefit - S. 5 (S. 60 of SS Code)
Entitlement :
average daily wage
for period of actual absence
rate of average daily wage - average of preceding 3 months [of leave]
or minimum wages of Rs 10 per day, whichever is higher
SS Code - “subject to minimum rate of wage fixed or revised under the
Code on Wages, 2019”
5(2): Eligibility
worked in the employer’s establishment for 160 actual working days in
the 12 months immediately preceding EDD (1961 Act)
80 days in 1989 Amendment & SS Code [S. 60]
includes paid holidays
 Maternity Benefit - S. 5
S. 5(3) : maximum period for maternity benefit is 12 weeks
6 weeks pre natal & EDD
6 weeks post natal leave
2017 Amendment & SS Code [S. 60]: maximum period 26 weeks
max. 8 weeks of pre natal leave
2017 Amendment & SS Code: 2/more surviving children
max. leave is 12 weeks
[6 weeks pre natal]
5(4): Adoptive/commissioning mother
12 weeks after child is handed over
 Work from Home

Section 5(5)

“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.”
S. 12 - Prohibition of termination of employment
Employer cannot discharge/dismiss a woman on maternity
leave.
Employer cannot change conditions of her service to her
disadvantage during maternity leave.
Discharge or dismissal any time during pregnancy will not deprive
her of maternity benefit or medical bonus, unless dismissal is for
gross misconduct [typically - fraud or dishonesty; verbal or physical
altercation; theft/damage]
If deprived of MB or medical bonus, woman may within 60 days
appeal to prescribed authority whose decision is final.
 Other benefits
Every woman entitled to maternity benefit shall also receive a medical
bonus of Rs 3500 [from Dec 2011 onwards & in SS Code S. 64] if no
prenatal confinement/post natal care is provided free of charge by
employer.
Section 9 - in case of miscarriage, a woman is entitled to 6 weeks of
paid leave immediately following day of her miscarriage. [S. 65 - Code]
9A - 2 weeks for tubectomy
Section 10 - a woman is entitled to 1 month of additional leave with
wages at the rate of maternity benefit in case she suffers from an illness
related to pregnancy, delivery, premature birth, miscarriage, or medical
termination of pregnancy.
 Other benefits

Section 11 - each woman is entitled to 2 nursing breaks when she

returns to work after delivery until the child is 15 months of age.
Section 13 - no deduction of wages for such nursing breaks.
Creche facility -
Every establishment having 50 or more employees is required to have
a mandatory crèche facility within a prescribed distance from the
establishment, either separately or along with other common
facilities.
4 visits
SS Code - establishment may avail common creche facility of
Central/state govt/municipality/private entity/NGO [S. 67]
 Administrability - Inspectors
Section 17
A woman entitled to receive MB/ her nominee can complain to
inspector.
Discharge/dismissal on account of absence from work can
complain to Inspector.
Inspector, suo motu or on receipt of complaint, makes enquiry. If
satisfied that payment has been wrongfully withheld, she can
direct payment through orders.
Aggrieved party can appeal to prescribed authority against
Inspector’s orders within 30 days.
Prescribed authority’s decision is final.
National Commission for Women [100+ complaints in 2018-19]
Thomas Eapen v Assistant Labour Officer, 1993 LLR 800 (Ker)
Section 72 - SS Code - INspector-cum-Facilitator
 Other Administrability provisions
Section 21 - penalties for non-payment of maternity benefits, unlawful dismissal ,
Employers can face up to 3months - 1 year in prison and/or fines of
Rs. 2,000 to Rs. 5,000.
The court can also recover and pay any owed maternity benefits
directly to the woman.

Section 23 - cognisance of offences is taken when a complaint is filed in any

Court of competent jurisdiction. No such complaint shall be filed after the
expiry of 1 year from the date on which the offence is alleged to have been
committed.

Section 27 - If a woman has more favourable benefits from an award,

agreement, or contract than those in the Maternity Benefit Act, she will retain
those benefits instead.
 Administrability [Big Picture Concerns]
Employers are not expected to consider maternity benefits as a
financial burden or administrative problem, but as a contribution
allowing women dignity.
CTC - as a % of wage = 20% for male employees [GPF, ESIC, Gratuity,
EDLI, Admin charges]
CTC [after MBA + other social security] - as a % of wage = 30% for
female employees [26 weeks paid leave, avg. of 2 maternities = 52
weeks’ pay (1 year’s pay)]
Creches -
“user fee” on the concerned employee
engagement of third party service providers?
where should it be provided?
How long can one use it for?
 Class Activity
Modalities:
Each group will:
take 2 minutes to make their case.
must pose 1 question to the group that precedes them. [Team 1 will ask Team 6 at the very end.]
Teams:
Team 1: Crèche facilities funded by employers as CTC (Cost to Company).
Team 2: Crèche facilities funded by companies as CSR (Corporate Social Responsibility).
Team 3: Crèche facilities funded by state governments [tax payer- citizen? Company? Which budget head?]
Team 4: Crèche facilities funded through a central social security scheme [tax payer - citizen? Company?
Which budget head?] Run/managed by?
Team 5: Crèche facilities funded by employees through common funds & run by employer.
Team 6: Crèche facilities run by NGOs
 Paternity Leave
Shared Responsibility: Paternity leave promotes the idea that both parents share
equal responsibility in child-rearing.
Balancing Work and Family: Providing paternity leave can help balance the
domestic workload, enabling both parents to spend quality time with the child,
without one of them being disproportionately burdened.
Postpartum Care: After childbirth, women often need time to recover physically and
emotionally.
Retention of Female Employees: Providing paternity leave can help retain women in
the workforce.
Case Laws
Municipal Corporation of Delhi v. Female Workers and
another, 2000 SCC (L&S) 331
Are female workers on muster roll “women”?
Facts
The female workers who were on the muster roll demanded maternity leave, but
were denied because their services were not regularized.
A petition was filed by the Delhi Municipal Workers Union stating that the
Municipal Corporation of Delhi provides employment to many employees and
female workers (muster roll) who are made to work in that capacity for years
and perform the same nature of duties and responsibilities as performed by
regular employees.
They argued that the denial of the maternity benefits to the female worker on
muster rolls shows a dismissive attitude of the corporation.
Municipal Corporation of Delhi v. Female Workers and
another, 2000 SCC (L&S) 331

The validity 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 action complained of.
There is no justification for denying the benefit of this Act to casual workers or workers
employed on a daily wage basis. The Act is wholly in consonance with the D.P.S.P. as
set out in Article 39 and especially Article 42.
Nothing contained in the Act limits entitlement only to regular women employees and
not to those who are engaged on casual basis or on muster roll on daily wage basis.
Article 11 of Convention on the Elimination of all forms of discrimination against
women - read into the contract of service between MCD and the women employees.
The Supreme Court ruled in favor of the female workers, and directed the
Municipal Corporation of Delhi to extend these benefits to all female workers
employed on a muster roll basis.
 B. Shah v. Labour Court, AIR 1978 SC 12
Are Sundays a part of the week?
Facts
Subammal, a plantation worker was granted maternity leave and received
benefits equivalent to 12 weeks of work. However, Sundays were excluded from
the calculation, as the company regarded them as unpaid rest days [i.e. wage-
less days].
Subammal brought the matter before the Labour Court, arguing that her
maternity benefits should include payment for the 12 Sundays. The Labour Court
ruled in her favour, ordering the company to compensate her for those Sundays.
The Madras High Court however sided with the company. The claimant, still
dissatisfied, appealed again, and the HC ruled in her favor.
In response, the company filed an appeal to the Supreme Court.
 B. Shah v. Labour Court, AIR 1978 SC 12
Are Sundays a part of the week?
Court’s Reasoning
The MBA does not define “week”, thus it is understood in ordinary dictionary meaning as a
cycle of 7 days including Sundays - seven successive days as a term for periodical payments.
Legislature intended for Sundays and ageless holidays to be included under “period” in
Section 5, if not, it would have stated otherwise.
In interpreting provisions of beneficial pieces of legislation which is intended to achieve
social justice and which fall within the purview of Article 42 of the Constitution, the
beneficent rule of construction which would 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 has to be adopted by the Court.
Thus, Sundays and wageless holidays are included in the computation of maternity
leave.
 Ansu Rani v. State of UP, WRIT No 3486 of 2019

Facts
The petitioner submits an application of maternity leave for 6 months - 180 days to the
UP State Government’s Education department,
The Education Officer gives no reasons, but denies leave for 180 days and grants leave
for 90 days.
Petitioner argues that according to the Maternity Benefit (Amendment) Act, 2017 - the
period of maternity leave has been increased from 12 weeks to 26 weeks.
The Respondent argued that it is not possible in law to grant maternity leave to the
petitioner for a period of 180 days in view of UP state Government Orders
 Ansu Rani v. State of UP, WRIT No 3486 of 2019

Court’s Reasoning
Precedent - “the validity 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.”
Maternity leave is a social insurance. Female employees of the State of U.P. are entitled
for the benefits of the maternity leave as contained in the Maternity Benefit Act 1961 as
amended by the Maternity Benefit (Amendment) Act, 2017.
Issues a mandamus directing District Basic Education Officer, Bijnor to provide the
petitioner maternity leave with honorarium with effect from 30.12.2018 to 31.3.2019 [for
the other 90 days].
 Hema Vijay Menon v. State of Maharashtra
Can commissioning mothers get maternity leave?
The object of maternity leave is to protect the dignity of motherhood by providing
for full and healthy maintenance of the woman and her child.
Motherhood never ends on the birth of the child and a commissioning mother like
the petitioner cannot be refused paid maternity leave.
To distinguish between a mother who begets a child through surrogacy and a
natural mother who gives birth to a child, would result in insulting womanhood and
the intention of a woman to bring up a child begotten through surrogacy, as her
own.
Right to life under Article 21 of the Constitution of India includes the right to
motherhood and also the right of every child to full development.
The court held that the Petitioner would be entitled to maternity leave for 1 year.
 Pooja Jignesh Doshi v. State of Maharashtra
Can commissioning mothers get maternity leave?

The Petitioner and her husband chose the route of surrogacy for the birth
of their second child. The surrogate mother gave birth to a baby girl on 5
November 2012.
But the Petitioner sought maternity leave to take care of the surrogate
child before the EDD.
This application was rejected on the ground that the Leave Rules and the
policy governing the Rules do not permit maternity leave for a surrogate
child.
The Court relied on the precedent, Hema Vijay Menon v. State of
Maharashtra to hold that the Petitioner is entitled to maternity leave for
child born through surrogacy.
Union of India v. Asiya Begum, WA No. 4343 of 2019
What if I give birth to triplets? No. of children or deliveries?

Facts
The Petitioner is an employee of the CISF - Central Industrial Security Force. She was
granted maternity leave for 180 days and gave birth to twins. Two years later, in 2017,
she is granted another 180 days of maternity leave for the delivery of her third child.
However, in 2018 the employer clarifies that she is not entitled to second maternity leave
because the Central Civil Services (Leave) Rules, 1972 - Rule 43 - entitle women to
such leave only when you have less than two surviving children.
The Petitioner argued that the 2018 order is unconstitutional because she is entitled to
maternity leave for a second time; it is not her fault that she gave birth to twins in her
first delivery. Thus, the oemployer’s order is opposed to equity, fair play, good
conscience and justice.
Union of India v. Asiya Begum, WA No. 4343 of 2019
What if I give birth to triplets? No. of children or deliveries?

Court’s Reasoning
In 2019, the learned Single Judge relying on precedents which advocated
against restricting the benefit of maternity leave in similar circumstances,
ruled that the 2018 order should be set aside and the leave period for 180
days in 2017 shall be treated as the maternity leave.
The 2019 judgment of the learned Single Judge was set aside.
However, the HC noted that in the event, the appellants have any power to
grant any relaxation in exceptional circumstances, then, such may be a
matter worth consideration, as it entails financial consequences which
ultimately results in deprivation of benefits to the new born child.
 Neera Mathur v. LIC (1992) 1 SCC 286
Can my employer ask me about my menstrual cycle?

Facts
Petitioner applied for the post in the LIC India. After succeeding in the screening
process, she was asked to fill out a declaration form and on the same day, she was
also examined by a lady doctor who is on LIC’s approved panel and found her
medically fit for work.
She is appointed as an Assistant on 25 Sept and put on probation for 6 months.
Petitioner takes leave for 3 months [9 Dec - 8 Mar 1990]. She applies for maternity
leave on 27 Dec and submits a medical certificate on 6 Jan. She delivers a baby on
11 Jan and is discharged from nursing home on 19 Jan.
On 13 Feb, she is discharged from service - during her probation period. In the
order, no grounds are assigned and it seems to be discharge simplicitor.
 Neera Mathur v. LIC (1992) 1 SCC 286
Can my employer ask me about my menstrual cycle?

Particulars on the declaration form (excerpts)

Have the menstrual periods always been regular and painless, and are they so
now?
How many conceptions have taken place?
How many have gone full-term?
Date of last menstruation
Are you pregnant now?
State the date of last delivery.
Have you had any abortion or miscarriage?
 Neera Mathur v. LIC (1992) 1 SCC 286
Can my employer ask me about my menstrual cycle?

Instruction wrt to the Medical examination for recruitment of staff. Clause 16:
i. MEDICAL EXAMINATION: No person shall be appointed to the services of
the Corporation unless he/she has been certified to be of sound
Constitution and medically fit for discharging his/her duties. If at the time
of medical examination, any lady applicant is found to be pregnant, her
appointment to the Corporation shall be considered three months after the
delivery. This would be subject to a further medical examination at the
candidate's cost and subject to the ranking list continuing to be valid.
 Neera Mathur v. LIC (1992) 1 SCC 286
Can my employer ask me about my menstrual cycle?

Court’s Reasoning
The SC stated that the real mischief though unintended is about the nature of the declaration
required from a lady candidate. The particulars in the declaration are embarrassing if not
humiliating. Modesty and self respect may perhaps preclude the disclosure of such personal
problems. The Corporation would do well to delete such columns in the declaration.
If the purpose of the declaration is to deny the maternity leave and benefits to a lady
candidate who is pregnant at the time of entering the service (the legality of which we
express no opinion since not challenged), the Corporation could subject her to medical
examination including the pregnancy test.
The SC directed LIC to reinstate Mrs. Mathur and overturned the discharge order,
citing the lack of evidence proving her performance was unsatisfactory. The Court
noted that her termination was solely based on her failure to disclose personal information in
her declaration, which she was not obligated to reveal to her employer.
 Mini KT. v. Divisional Manager, LIC 2018(1)KLJ245
Leave for “compelling family” care-giving responsibilities

Facts
KT Mini, the petitioner, was employed as an assistant at the Life Insurance
Corporation (LIC), with 17 years of service.
In 2001, Mini’s second child was born and later diagnosed with mild autism, which
was characterized by speech impairment and abnormal social behavior.
In 2007, while on extraordinary leave, Mini traveled to Bahrain to be with her
husband and provide her child the best support. She also applied for a 60 day
extension on the EL.
During this time, LIC ignored Mini's requests for either an extension of her leave or
a transfer to Bahrain.
LIC initiated disciplinary proceedings against her and ultimately terminated her
employment.
 Mini KT. v. Divisional Manager, LIC 2018(1)KLJ245
Leave for “compelling family” care-giving responsibilities

Court’s Reasoning
CESCR, ICCPR, CRC, Art. 1 & 11 of the CEDAW, Articles 16 and 25 of the UDHR:
rights of the family, protections to motherhood and childhood.
Constitutional provisions must be read and interpreted to enhance their conformity
with the global human rights regime.
Dignity is a constitutional value and goal under Art. 21. The employer has to
protect her person-hood as "mother". If not that, it will be an affront to her status
and dignity. Thus, a woman employee cannot be thrown out from service for
remaining absent on account of taking care of child, if such taking care is
indispensable for her child. It is made clear that it is only in compelling
circumstances, such right can be claimed and protected.
The Court held that the Petitioner must be reinstated in service.