Can I get leave if I had a miscarriage, abortion or a tubectomy operation?

If you have had a miscarriage or an abortion then upon showing proof of the same, you will be entitled to leave and payment at the rate of maternity benefit for 6 weeks from the date of the 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. If you have suffered from an illness due to a miscarriage, abortion or tubectomy operation, you will get an additional month of leave with wages.1

  1. Section 9,9A and 10, The Maternity Benefit Act, 1961.[]

How do I calculate the number of days I have worked for my employer ?

For the purpose of calculating the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared to be paid  holidays during the period of 12 months immediately preceding the date of her expected delivery shall be taken into account.1

In a case where the factory remained closed during the rainy season, those days were added to the days during which she worked for the purpose of calculation.2 Even in a case where the woman had worked for a few half days, they were counted as full days for the purpose of calculating the total number of days she had worked at the establishment.3

  1. Explanation, Section 5(3), The Maternity Benefit Act, 1961.[]
  2. F.M. Kolia and Ors. Vs. Manager, The Tiles and Pottery Works Ltd. and Ors. (1981) 22 GLR 528.[]
  3. Ram Bahadur Thakur (P) Ltd. Vs. Chief Inspector of Plantations (1989) IILLJ 20 Ker.[]

Can fathers get paternity leave in India?

Employees working in the public sector get certain paternity leave benefits. Male employees with less than 2 surviving children get a leave of 15 days to take care of their newborn/ adopted child.1 A man can avail this leave 15 days before delivery, or within 6 months from the date of delivery of the child. The payment during the leave will be equal to the pay last drawn immediately before proceeding on leave.

However, this concept does not exist for private-sector employees, unless specific companies allow for it. The proposed Paternity Benefit Bill, 2017 seeks to protect the paternity rights of working men, but it has not been passed yet.

  1. Section 551 (A), Central Civil Services (Leave) Rules.[]

What is the maternity benefit under the ESI Act(Employees State Insurance Act, 1948)?

The Employees State Insurance Act, 1948( ESI ) is a law meant to financially support workers when they go through medical distress. Under the ESI law, you are eligible to get periodical payments in terms of maternity benefit. However, you have to work for 70 days to be eligible for maternity benefit. The benefits under the ESI law are as follows:

  • You are entitled to paid maternity benefits for a period of up to 26 weeks. Out of this, the benefits of 8 weeks can be availed before delivery.1
  • 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 the total number of days you have worked for or Rs. 25 whichever is higher.
  • The type and time period of the 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.
  • If a woman dies during delivery or in the period following her delivery then the same rules as under the Maternity Benefit Act apply.
  • Under this Act, you cannot be dismissed, discharged, or punished while you are receiving maternity benefit.2

You are also entitled to a confinement expense of Rs.5000, provided that the confinement occurs at a place where necessary medical facilities under the ESI Scheme are not available.3

  1. Section 56(2), Employees’ State Insurance (Central) Amendment Rules, 2017.[]
  2. Section 73, Employees State Insurance Act, 1948.[]
  3. Section 56A, Employees’ State Insurance (Central) Amendment Rules, 2017.[]

Can I get leaves from my workplace if I had a miscarriage, abortion or a tubectomy operation?

If you have had a miscarriage or an abortion, then upon showing proof of the same, you will be entitled to leave and payment at the rate of maternity benefit for 6 weeks from the date of the 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. If you have suffered from an illness due to a miscarriage, abortion or tubectomy operation, you will get an additional month of leave with wages1.

  1. Sections 9, 9A and 10, The Maternity Benefit Act, 1961.[]

Who can seek Maternity Benefits?

You can seek maternity benefits if you are a woman and if you are:

  • Pregnant for the first time
  • Pregnant with one child or 2 children already
  • Adopting a child below the age of 3 months 1
  • Having a child through a surrogate 2
  • Recovering from a miscarriage, abortion or tubectomy operation

You can enjoy maternity benefits such as taking a period of leave and getting paid during this period. However, you can only enjoy such benefits if you have worked for an employer for a minimum of 80 days in the last 12 months before your delivery. 3 This applies to all women who are pregnant, irrespective of age or marital status. However, this shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. 4

Currently, under the law, only women can seek maternity benefits. Men or persons who identify with other genders do not have an option to seek the benefits. However, you can check with the internal policy of your organization as it may provide for gender-neutral pregnancy leaves or paternity leaves.

Types of employment

Regular employee

Maternity benefit does not differentiate between permanent, temporary and contractual employees, so denying the benefit to any type of worker is against the law. 5

Casual/ Muster Roll employee

Courts have held that even women engaged on a casual basis, or on a muster roll basis6) on daily wages, are entitled to get the benefit of maternity leave at par with regular employees. 7

Contractual employee

Maternity leave benefits are also accorded to contractual employees. 8 Further, contractual employees are also entitled to 26 weeks of maternity leave. 9 However, a woman cannot avail maternity benefits after the expiry of the contractual period. 10

  1. Section 5(4), The Maternity Benefit (Amendment) Act, 2017.[]
  2. Section5(4), The Maternity Benefit (Amendment) Act, 2017.[]
  3. Section 5(2), The Maternity Benefit Act, 1961.[]
  4. Proviso, Section 5(2), The Maternity Benefit Act, 1961[]
  5. Indu Joshi Vs. State of Uttarakhand and Ors. 2013 (139) FLR 439; Rachna Chaurasiya Vs. State of U.P. and Ors. 2017 (6) ALJ 454[]
  6. Swati and Ors. Vs. Government of NCT of Delhi and Ors. 2016 (1) SLJ 201 (CAT[]
  7. Anju Sharma Vs. Lt. Governor, NCT of Delhi and Ors. In The Central Administrative Tribunal Principal Bench At New Delhi O.A. No. 543/2011; Municipal Corporation of Delhi Vs Female Workers (Muster Roll) and Ors. AIR 2000 SC 1274; Geeta Sharma Vs. Union of India RLW2001(4) Raj 637.[]
  8. Priyanka Gujarkar Shrivastava Vs. Registrar General and Ors. 2017 Lab IC 1646; Shanti Mehra Vs. State of Uttarakhand and Ors. 2017(2) UC 1438; State of H.P. Vs. Sudesh Kumari 2015 (145) FLR 516.[]
  9. Jeslin Jose Vs. Cochin Port Trust 2019 (2) KHC 797[]
  10. Bharti Gupta Vs. Respondent: Rail India Technical and Economical Services Ltd. (Rites) and Ors. 123 (2005) DLT 138; Kavita Yadav Vs. The Secretary, Ministry of Health and Family Welfare Department W.P. (C.) No. 8884/2019 DHC.[]

Maternity Leave

You are entitled to leave from work when you are having a child. However, this differs based on certain circumstances:

If you are pregnant for the first time or you already have one child

You can claim a maximum of 26 weeks of leave if you are pregnant for the first time or if you already have one child. However, you cannot take more than 8 weeks of leave before the expected delivery date. 1

If you already have 2 children

If you have 2 or more surviving children, then you can take 12 weeks of leave. For example, if a woman has 2 children already and is pregnant with her 3rd child, then she can take only 12 weeks of maternity leave. However,  only 6 weeks, can be taken before delivery. 2

Adopting a child/ Commissioning mother

A woman who legally adopts a child below the age of three months, or a commissioning mother, is entitled to maternity leave. The period of leave is for 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother. 3
A commissioning mother is also entitled to all the benefits an employee could have post the delivery of the child, except the leave involving health of mother after delivery. 4

If you are suffering from illness arising out of pregnancy, delivery, premature birth of child, miscarriage, abortion or tubectomy operation, you will be entitled to an additional month of leave with wages at the rate of maternity benefit. (( Section 10, The Maternity Benefit Act, 1961.) You will have to submit proof of the illness for the same.

  1. Proviso, Section 5(3), The Maternity Benefit (Amendment) Act, 2017.[]
  2. Proviso, Section 5(3), The Maternity Benefit (Amendment) Act, 2017.[]
  3. Section 5(4), The Maternity Benefit (Amendment) Act, 2017.[]
  4. P. Geetha Vs.The Kerala Livestock Development Board Ltd. 2015 (1) KHC 165; Sadhna Agrawal Vs. State of Chhattisgarh and Ors. 2017 Lab IC 617.[]

Salary during Maternity Leave

Employers have to pay women for the period during which they are absent from work as a result of their pregnancy. This is known as a maternity benefit. 1

  • An employer has to pay you for a period starting from the day of your delivery to six weeks afterwards. This period also includes the day of the  delivery. 2
  • However, you can only enjoy such benefits if you have worked for that employer for a minimum of 80 days in the last 12 months before your delivery. 3

Calculating Payment Amount/Average Wages

During this period of pregnancy, employers have to pay you the maternity benefit in the form of an average daily wage. 2 The calculation for the average daily wage is based upon the average of your wages for the 3 months before the date on which you start your pregnancy leave. The following  aspects are considered while calculating wages:

  • To calculate the number of days a woman has worked in the 3 months before the pregnancy leave, the employer will also consider the days for which the woman was fired or laid-off or on a holiday with wages.
  • If the calculation given above is not possible, the wage amount is considered to be 10 rupees per day. Even if calculation is possible, the higher amount out of the two is paid to the woman. 4

Medical Bonus

If you did not take time off before your delivery and your employer does not provide free post-natal care,  you are also entitled to receive a medical bonus of 1000 rupees from your employer. 5

  1. Section 2(h), The Maternity Benefit Act, 1961.[]
  2. Section 5(1), The Maternity Benefit Act, 1961.[][]
  3. Section 5(2), The Maternity Benefit Act, 1961.[]
  4. Explanation, Section 5(1), The Maternity Benefit Act, 1961.[]
  5. Section 8(1), The Maternity Benefit Act, 1961.[]

Responsibility of Employers

Employers are people appointed by the government or the local authorities to supervise and control the employees of an organization. These employers have ultimate control over the establishment. 1 If no person is appointed as the employer, then the head of the department or the chief executive officer of the local authority will be considered to be the employer. People such as managers and managing directors are also considered to be employers in certain situations.

Duties of employers

Employers have the following duties:

  • At the time of joining the employment, employers have to inform women  about every maternity benefit available under the Maternity Benefit Act and within the organization. 2)
  • The employer cannot knowingly employ a woman during the 6 weeks following the date of her delivery, abortion or miscarriage. 3
  • The maternity leave starts  6 weeks before the delivery date of the woman. However, if she requests, it can start  one month before this period. During this period, the employer cannot give her arduous work, including any work that requires hours of standing or work that can negatively affect her health. 4
  • Employers cannot dismiss women from their job during the maternity leave period.
  • Employers cannot deny payment of the maternity benefit to a woman eligible for such a benefit.

Punishments for Employers

Dismissal or non-payment of benefit

If an employer does not pay you the maternity benefit amount or dismisses you during your maternity leave, then he can be punished with imprisonment for up to one year and with a fine of up to five thousand rupees. 5

Punishment for any other violation

If your employer violates the law (The Maternity Benefit Act), then the punishment is imprisonment of up to one year, and/or a fine of up to five thousand rupees.

Obstructing Inspectors

If anyone, including the employer, obstructs the Inspector from doing his duty then they will be punished with imprisonment of up to one year, and/or  a fine of up to five thousand rupees .6

If you are facing trouble while seeking the benefit or for any other maternity-related reason, you have a right to file a complaint. Read more here.

  1. Section 3(d), The Maternity Benefit Act, 1961.[]
  2. The Maternity Benefit (Amendment) Act, 2017, Section 11(2[]
  3. Section 4(1), The Maternity Benefit Act, 1961[]
  4. Section 4(3) and Section 4(4), The Maternity Benefit Act, 1961[]
  5. Section 21(1), The Maternity Benefit Act, 1961.[]
  6. Section 22, The Maternity Benefit Act, 1961.[]