Maternity Benefit in India

The Constitution of India recognizes the need to make provisions for “securing just and humane conditions of work and for maternity relief”.((The Constitution of India, Article 42.))1 Historically, childbirth and the upbringing of children has been used as a justification for limiting the role of the women to the home and to prevent her from taking up employment. Pregnancy being an active choice of the woman cannot be construed to render her incapable of performing her work which is why protections are required to help secure her place in the labour force while being pregnant. For working women who might not have the familial, emotional or economic support in terms of care-giving or for women who choose to be the primary care-givers of the child in the first few months, childbirth and pregnancy as a whole becomes a barrier for them to work. Women have always had to choose between working and childcare. With the objective to prevent such a scenario, maternity benefit provisions have been enacted in the labour laws of our country. These protections do not only require to take into account financial independence and stability during and after pregnancy but also other requirements such as adequate health care and treatment and recovery time.

What is maternity benefit?

Maternity benefit is a payment you are entitled to receive from your employer when you are pregnant. It is given for the period you are absent from work due to your pregnancy. The leave period includes the period before the day of your delivery, the actual day of your delivery and any period immediately following that day.((The Maternity Benefit Act, 1961, Section 5))2 Your employer must pay you maternity benefits at the rate of your average daily wage. It is calculated as the average of the salary you have earned in the last 3 months from the day you take a leave for your pregnancy. You are entitled to 26 weeks of maternity benefit. Out of this, 8 weeks can be taken before delivery. If the woman dies within these eight weeks then maternity benefit will be paid up to and the date of her death. But if you already have two or more surviving children then you are entitled to twelve weeks out of which 6 weeks can be taken before delivery. If a woman dies during delivery or in the period following her delivery and if the child survives, the employer must pay the maternity benefit for the entire period. But, if the child also dies then maternity benefits will only be given only for the days up to the date of death of the child. In this case, the payment must be made to the person nominated by the woman.((The Maternity Benefit Act, 1961, Section 7.))3

What law provides for maternity benefits in India?

Depending on the sector you are working in, you will be entitled to maternity benefits under the following laws:

• Maternity Benefit Act, 1961.

• Employees State Insurance Act, 1948.

Who all does the Maternity Benefit Act apply to?

The Maternity Benefit Act will apply to you if you work in –

• A private or government establishment which includes a factory, mine or plantation.

• Shop or establishments (as within the shops and establishments Act within that State) which has employed 10 or more people in the past 12 months.

• If you are an equestrian (horse-rider), acrobat in an establishment or are employed at any establishment to do any performance.

• Any other establishments that the State government may notify.

However, if your establishment is covered under the Employees State Insurance Act, 1948, then the provisions for maternity benefit under that law will apply to you.

Can maternity benefits be claimed in cases of adoption and surrogacy?

Yes, if you adopt a child below the age of three months or are having a child through a surrogate you can claim maternity benefit for a period of twelve weeks from the date the child is handed over to you.((The Maternity Benefit Act, 1961, Section 5.))4 When are you eligible to claim the benefit? You can claim maternity benefit from your employer if you have worked in their establishment for at least 80 days in the last 12 months before your delivery. However, if during the period of your maternity leave you take up employment in any other establishment; you will have to forfeit your maternity benefit((The Maternity Benefit Act, 1961, Section 18)).5 How many days or weeks of maternity leave are you eligible for? How many days or weeks after your pregnancy are you not allowed to work? You can take maternity leave for the entire period you receive maternity benefit, which you can choose to avail in its entirety (26 weeks) or in parts.((The Maternity Benefit Act, 1961, Section 6(4)))6 During the six weeks immediately following the day of your delivery, miscarriage or abortion you are not allowed to work. Your employer also cannot knowingly make you work during that period. Can you request your employer to give you less heavy work during your pregnancy? You can request your employer to not give you any strenuous work which would involve long hours of standing or any work which might affect your pregnancy and the foetus. This request can be made in the one month immediately before the six weeks of your expected day of delivery or if you don’t take leave for the six weeks before your delivery- any time within that six weeks.((The Maternity Benefit Act, 1961, Sections 4(3) and 4(4)))7

How can you claim maternity benefit?

You must give a written notice to your employer that would mention the date from when you wish to take a leave. You should also state that you will not work during this period anywhere else. If you have not given the notice during your pregnancy, you have to give the notice as soon as possible after your delivery. In the notice you can also nominate any person to receive the benefit on your behalf. You are permitted to take leave after your employer receives the notice. The employer must pay you your maternity benefit for the period before your delivery in advance. For this, you are required to submit proof that you are pregnant. Subsequently, you can claim the maternity benefit for the period after your delivery within 48 hours of you submitting proof that you have delivered the child.((The Maternity Benefit Act, 1961, Section 6.)) 8 What are the other leaves, payments and amenities that you are entitled for? If you have a miscarriage or abortion, you are entitled to take paid leave of six weeks following the day of your miscarriage or abortion. If you have had a tubectomy operation then you get leave with wages for two weeks from the date of your operation.((The Maternity Benefit Act, 1961, Sections 9 and 9A.))9 You are also entitled to receive a medical bonus of thousand rupees. You can claim it, if you do not take leave before your pregnancy or your employer does not provide you free medical care for after your delivery.((The Maternity Benefit Act, 1961, Section 8.))10 If you are ill owing to pregnancy, delivery, premature birth of child, miscarriage, abortion or tubectomy operation you can take an additional leave with wages of one month. You need to provide proof for each of these events to claim such leave and payments. After returning to work you can also take two nursing breaks during the day, until your child turns fifteen months. If your workplace has more than fifty employees then your employer should have a crèche which you can visit four times a day.((The Maternity Benefit Act, 1961, Sections 11 and 11A))11 Can you be dismissed during your maternity leave? Alternatively, can my salary be deducted? You cannot be dismissed or discharged by your employer during or due to your maternity leave. Your condition of work also cannot be changed to give you a disadvantage. If you are dismissed or discharged at any other time during your pregnancy you are still eligible to receive maternity benefit or medical bonus. Only for gross misconduct can you be dismissed and dis-entitled for your maternity benefit. Your salary cannot be deducted on the basis of you requesting and doing non-strenuous work during your pregnancy or for taking nursing breaks.((The Maternity Benefit Act, 1961, Sections 12 and 13.))12

Who can you approach if the provisions of this law are not implemented?

Inspectors are appointed by the Central Government to oversee the working and implementation of this law. You can make a complaint to the Inspector or he can make a complaint by himself and conduct an inquiry if you have been:

• Wrongfully denied of your maternity benefit, or;

• not paid properly as per the law, or;

• dismissed or discharged.

If you or your employer are dissatisfied by the decision of the Inspector an appeal can be made within 30 days from the date of such decision to a prescribed authority mentioned in the Act. Are there any penalties for the employer if they don’t comply with the law ? If your employer fails to pay you maternity benefit or dismisses you during such time, they can be punished with imprisonment and fine. If the employer violates any other provision or rule under the Maternity Benefit Act for which no specific penalty is given then they will be punished with imprisonment for upto one year, or with fine upto Rs. 5000 or with both. If anyone obstructs the Inspector from doing his duty then they will be punished with imprisonment upto one year, or with fine upto Rs. 5000 or with both.((The Maternity Benefit Act, 1961, Section 21 and 22))13 What happens if you are covered under the Employees State Insurance Act, 1948? What are the benefits under this Act? If your establishment is covered under the Employees State Insurance Act, the maternity benefits are different and provisions given in that Act will apply to you. Under this Act you are eligible to get periodical payments in terms of maternity benefit.((Employees State Insurance Act, 1948, Section 46(b))) 14 To understand your eligibility under this scheme, please read this and this. You have to pay a contribution for 70 days in order to be eligible for maternity benefit. Only if you are not eligible under this scheme, will you be able to avail under the Maternity Benefit Act. The benefits under Employees State Insurance Act are as follows:

• You are entitled for paid maternity benefits for a period of upto 12 weeks. Out of this, benefits of 6 weeks can be availed before delivery.

• The maternity benefit under this law is a “Standard Benefit Rate”. It is the total amount of salary/wages received during a contribution period divided by total number of days you have worked for or Rs. 25 whichever is higher.

• The type and time period of benefits you can avail, if you have undergone miscarriage, abortion or are sick owing to your pregnancy, is the same under this law as it is under the Maternity Benefit Act.¹15

• If a woman dies during delivery or in the period following her delivery then the same rules as under Maternity Benefit Act applies.

• Under the Employees State Insurance Act, your employer cannot dismiss, discharge, or reduce or punish you while you are receiving maternity benefit.16((Employees State Insurance Act, 1948, Section 76(1))

Swarna Sengupta is a student at West Bengal National University of Juridical Sciences and a member of Kautilya Society, an initiative of Vidhi Centre for Legal Policy. Views are personal.  

1. Employees State Insurance Rules, Rule 56. [↩]