case study on maternity benefit act 1961 pdf

Case study on Maternity Benefit Act 1961: An Analysis

The objective of maternity benefits is to safeguard the dignity of motherhood by providing proper care-consideration to the child and mother when she is not able to fulfil her duties due to health reasons. i. introduction “war is to man what maternity is to a woman. from a philosophical and doctrinal viewpoint, i do not believe in perpetual… read more ».

The objective of maternity benefits is to safeguard the dignity of motherhood by providing proper care-consideration to the child and mother when she is not able to fulfil her duties due to health reasons. I. Introduction “War is to man what maternity is to a woman. From a philosophical and doctrinal viewpoint, I do not believe in perpetual peace.” – Benito Mussolini India is that the second-largest country in the world in terms of population, but it’s still within the class...

The objective of maternity benefits is to safeguard the dignity of motherhood by providing proper care-consideration to the child and mother when she is not able to fulfil her duties due to health reasons.

I. Introduction

“War is to man what maternity is to a woman. From a philosophical and doctrinal viewpoint, I do not believe in perpetual peace.” – Benito Mussolini

India is that the second-largest country in the world in terms of population, but it’s still within the class of developing countries, one of the most important reasons for which is the inequality in operating conditions between men and women. Trade unions were still in their infancy and the working conditions of ladies and kids in the facility were terribly important. After the regulation of sure laws, akin to the Labor Dispute Act of 1947 , things began to be largely regulated, but what regarding the precise conditions women face, such as childbirth, before, during, and after childbirth? In 1961, the Maternity Benefits Act 1961 , was implemented for the protection of women’s rights and interests, the act has gone through some amendments, made according to the changing needs of the society.

To regulate the employment of women before, during, and after childbirth and to provide a variety of benefits. This law covers all of India. Before the words “except in the case of Jammu and Kashmir” existed and were later released. The basic premise of this action is to create social justice for women workers of various works including those covered in the Employment Insurance Act, 1948 . The main purpose is to protect the health of the mother, provide certain benefits and the safety of the child, and regulate the work of women workers in certain establishments for periods before and after childbirth.

II. 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.

India is therefore aiming to create more enhanced gender-friendly labour opportunities and work environments. The fundamental aim of this law is to preserve the respect, dignity of the “Motherhood” which keeps the human race alive and to provide support in health and complete safety of child and mother, as otherwise she will not able to perform her duty and could lose her job and source of income.

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.

To become a mother is most natural phenomena and the employer has to be considerate and must realize that physical difficulties with such pregnant working females will affect their efficacy for that period and will have the struggle to perform her duties at the workplace while carrying a baby inside a womb or rearing it up after birth. And due to this reason, many employers tend to terminate the services of women when they found that pregnancy distracted women from work and women had to leave her job without payment when they actually need more financial stability for medical purposes and other basic necessities of child and mother. And if they had to keep working they were hit with heavy strain, exhaustion, and exertion which is injurious to both the life.

III. Maternity Benefit: Legal Framework

Indian Constitution

Women are provided rights and benefits under these Provisions- Article 14 provides the Right to equality in law , Article 15 provides the Right to social equality , under Article 16 Right to social equality in employment is mentioned, Article 21 Right to life and dignity. Under Directive Principles of State Policy the Articles 39 (a) provides“Right to adequate means of livelihood, Article 39 (d) Right to equal pay for equal work, Article 39 (e) Right that the health and strength of workers both men and women are not exploited and abused, Article 42 provides Right to just and humane conditions of work and maternity relief and under Article 46 Right to improvement in employment opportunities and conditions of the working women is provided [1] .

A milestone in this regard is given in a landmark judgment. [2] . In this case, discrimination was done between the stewardesses and the male pursers who were part of the same crew and cabin. One of the three issues was that Air India Corporation Act’s pregnancy clause stated that any of the air hostesses gets pregnant, they are to terminate their job immediately. The constitutional validity of this clause was challenged, for which the Supreme Court ruled that it is grossly unethical and in violation and infringement of rights under Articles 14 and 15 . The ability to work after pregnancy is a personal matter of the air hostess, that it shouldn’t be coerced.

Maternity Benefit Act 1961

According to section 2 of the said Act, it will apply to all establishments including plantation, shops where according to law 10 or more than 10 purple are working, mines or factories, or any other organization or company. The act does have a proviso clause where the government can add any class or category of establishments like agriculture, commercial, or otherwise within the boundaries of this act, as it deems necessary. In a landmark case [3] the court held that the provisions of this act shall be entitled to maternity leave and benefit not only to regularly employed workers but even to females who are engaged in casual or muster roll basis on a daily wage. In another case [4] the court said that to grant maternity leave of 180 days to all female employees state government and grant 730 days of childcare to minor Childs.

Section 3 of the law includes definitions of various appropriate government, maternity benefits, establishment, salaries, abortion, etc. Also according to section 4 , she’s going to not work for 1 month before her birth or for an amount of six weeks if the type of labour is stressful, like 6 weeks after her delivery—childbirth, medical termination, physiological state, or miscarriage.

Section 5 (1) states that maternal benefits are a benefit that each female should receive and that every employer is liable for the average daily wage rate on which she was absent, which will be the wage which she was receiving immediately 3 months before her absence, which again would come under the authority of Minimum Wages Act 1948 . The exception is that she would not be entitled to this if she has not worked in the said establishment in the last 12 months or at least 80 days —which includes the woman’s laid-off or any holiday declared by law. But then if the woman haves more than two or two children that this time period will be of just 12 weeks . If she dies during this period then the benefit will be given up only till that date and not after it and if she dies while childbirth or just after it then the child will get the benefit for the entire duration and this benefit will last only till the child is alive.

When adopting a child or commissioning mother [5] of below age 3 months , the woman is entitled to a benefit of 12 weeks, the term can be mutually agreed by the parties to work from home. In a leading case [6] the court signified the definition of “week” as a cycle of 7 days including Sunday. In another leading case [7] the issue was to include half days in calculating 160 days for determining maternity benefit arises where the court held that according to section 5 the period of lay-off shall also be included, during which period she is not expected to work and actual work for 160 days cannot be put on as a condition precedent for claiming the benefit. A woman can have a maximum of 26 weeks of maternity benefit; which includes 8 weeks prior to and including the day of delivery or miscarriage as provided by the new amendment act of 2017.

Under section 6 if a woman desires to claim the benefit then she will have to provide a written notice to her employer stating the time for which she will be unavailable and the amount to which she is entitled. She will be needed to provide a name for the nominee—which will be entitled to the benefit or any other amount, provide a notice when she conceives a baby, failure to do so will make her disentitled for the claim and this will depend according to the discretion go, inspector. She will also have to state that she will not be working in any other establishment during this period in the notice.

Section 7 says that if no nomination states then the legal representative of the woman will be entitled to the benefit. Section 8 provides that the employer is liable to proceed pre-natal confinement and post-natal care to the pregnant woman, failure to do so the woman will receive the damages of 1000/- which the central government can revise and increase every three years by notifying in the Official Gazette of India. Since 2011 the amount of medical bonus has increased to 3500 INR by the central government.

Under section 9 a woman is entitled to a leave and maternity benefit for about 6 weeks if she produces proof of miscarriages or medical termination of pregnancy and 2 weeks in case of tubectomy. Section 10 provides if a woman is suffering any illness or disease due to premature childbirth delivery, miscarriages, tubectomy, pregnancy, etc. then she is entitled to have a leave for 1 month with the maternity benefits in addition to the previously mentioned 12 weeks period.

Section 11A was added through the 2017 amendment act which talks about a crèche facility meaning a nursery for the care of preschool kids while their parents work. This clause puts this obligation to establish such facility on employer where there are 50 or more than 50 employees within the prescribed distance, to which workers are allowed to visit 4 times a day. Under section 12 the acts put an obligation on the employer not to dismiss or discharge a lady taking benefit under this act or give any sorts of notice for these matters and if done she is entitled to a medical bonus and maternity benefit and she should report this to any prescribed authority within 60 days. But if she is being let go because of her own gross misconduct then this obligation wears down from the head of the employer.

According to section 14, for this an inspector can be appointed by the authority who shall be a public servant according to section 16 , who can enter the work premises of concerned women at an inappropriate time to examine, report, register, record and inspect any required information from the employer about the details of the women. A proviso is there that no persons shall be coerced to provide any answers or evidence.

Section 17 discusses the power of an inspector to direct any payments and the other section discusses the maintenance of records and registers or any act exhibited by the employer. If without any reasonable grounds the employer fails to abide by any of the upper given sections of this act, then he shall be liable for a fine of 5000INR and one year of imprisonment.

Employees State Insurance Act, 1948

Apart from the upper given laws, maternity benefits are also provided under the Employees State Insurance Act, 1948 .” Related benefits are mentioned under Section 46, Section 50, and Section 56 of the said Act, and the rates and period of these benefits will be as provided by the Central Government. Under Section 73, the act puts a duty on the employer of not dismissing or punishing any employee during the period of maternity benefit and no notice of dismissal or discharge will be valid in the period specified for maternity benefit.

Though Maternity benefits are also under the purview of “Employees State Insurance Act, 1948”. However, the conflict between the two acts is averted by Section 2 of the Maternity Benefit Act, 1961 which states the application of the said act. Section 2 (2) clearly states the condition that apart from Section 5A and 5B this Act won’t apply to any factory or establishment to which provisions of Employees’ State Insurance Act, 1948 applies.

Central Civil Services Leave Rules : Rule 43 of the Central Civil Services Leave Rules, 1972 [8] states that a leave of 180 days with the same conditions.

IV. Conclusion

The objective of maternity benefits is to safeguard the dignity of motherhood by providing proper care—consideration to the child and mother when she is not able to fulfil her duties due to health reasons. The case of [9] discussed the motherhood theory in detail. This benefit aims to provide Quality time to the mother without worrying about losing her job and providing financial stability throughout this next phase of life.

There are certain drawbacks of these legislations such as these do not cover working women of an organized sector, not providing better clarity on crèche facility distance and if the employer has to be 26 weeks for paid absence then why he would not refrain from hiring women employees altogether reduce such additional costs. The new amendment will ensure full maternal care during the full bloom period that will encourage more women to join the jobs in the organized sector which will in-turn boost the financial independence of women.

The phenomenon of motherhood is the most important and beautiful thing in the world which should not be exploited at any cost. Any such discrimination and exploitation are inhumane and against every basic fundamental and basic human right which is both morally and ethically wrong. Every necessary step should be taken to safeguard such issues.

Bibliography & References

• Maternity Benefit Act, 1961
• The Maternity Benefit Act, 1961 and Maternity Benefit (Amendment) Act, 2017 and Creche Facility
• CRÈCHE facility by Employers in India: Rules Notified for Bangalore
• Creche Facility Under Maternity Benefit Amendment Act, 2017
• Indian Maternity Benefit (Amendment) Act, 2017
• Maternity Benefit Act, 1961 (MBA

[1] The Constitution of India, 1950′

[2] Air India v. Nargesh Mirza, 1981 AIR 1829

[3] Municipal Corporation of Delhi v. Female Workers (Muster Roll) Special Leave Petition (civil) 12797 of 1998

[4] Dr. Rachna Chaurasiya v. State of U.P. and others , Civil Misc. Writ Petition No. 24627 of 2017

[5] “A commissioning mother is defined as “biological mother who uses her egg to create an embryo implanted in any other woman” (the woman who gives birth to the child is called a host or surrogate mother).”

[6] B. Shah v. Presiding Officer, Labour Court Coimbatore 1978 AIR 12, 1978 SCR (1) 701

[7] Ram Bahadur Thakur Pvt. Ltd. v. Chief Inspector of Plantations (1989) IILLJ 20 Ker

[8] http://www.bareactslive.com/indexch.html

[9] U. Ishwarya v. Director of Medical Education, Directorate of Medical Education, and Others, W.A.No.374 of 2018 and C.M.P.No.3128 of 2018

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Maternity Benefit Act, 1961 in light of Preeti Singh v. State of UP and ors.

This article is written by Akshita Rohatgi , a student at GGSIP University, New Delhi. This exhaustive article covers the impact of the Maternity Benefits Act,1961, and the judgment Preeti Singh v. State of UP on Section 153 of the U.P. Financial Handbook.

Table of Contents

Introduction 

It has been well recognized that the economic empowerment of women is required for the development of any nation. This is especially significant in South Asian ones, where their participation in the workforce is abysmally low. Female workforce participation in India rests at a meagre 20.8% . This is widely recognized as a major reason for the slow growth of the country.

However, simply giving better opportunities to women is unlikely to erase the effects of centuries of discrimination. Even in an idealistic case where the genders are provided with the same opportunities in the economic sphere, discrimination in family life, social sphere, and stereotypes about weaker capabilities of women would continue to exist.

To rectify the problem, we need empowerment schemes based on the principle of affirmative action- one that recognizes the lack of a level playing field. Maternity benefits are one way of doing that. The average family unit in India still views the mother as the nurturer and the father as the breadwinner, and while progress is being made, it is slow and unlikely to go away anytime soon. As an interim relief, maternity benefits are needed to ensure that women are not forced to leave their jobs if they bear a child.

Maternity Benefit Act, 1961: an insight 

Establishments covered.

The Maternity Benefits Act , 1961 law that allows female employees paid leaves from work. The purpose of the law is to allow the newly- designated mother to care for herself and her newborn child. 

The Act applies to shops or establishments that employ more than ten people on any given day. It is also applicable to government-controlled factories, mines and plantations, and those that employ acrobatic, equestrian, or other such performers. Its application can also be extended to other establishments by the state governments. 

However, it does not extend to employees covered by the Employees State Insurance Act , 1948, since the Act already covers maternity benefits. 

Further, in the case of Delhi, the Act applies to all establishments, including commercial establishments covered under the Delhi Shops and Establishments Act, 1954. However, this applies to establishments save for the ones already covered by the Employees State Insurance Act. 

The eligibility criterion for women

A woman must have been working under the given establishment for at least 80 days in the past year (12 months) to be eligible for benefits under this Act. In case of death of the woman, the benefit would be paid only up to the date of death. In case of the child’s death, the benefit will be extended till the date of death. The Act also allows women to negotiate more favourable terms, than the act allows. 

2017 amendment

The maternity leave, under the Maternity Benefits (Amendment) Act , 2017, was increased from 12 to 26 weeks. The benefits may be availed up to 8 weeks before delivery, and the remaining after childbirth. However, in case the woman has two or more than two surviving children, the duration of leave would be reduced to only 12 weeks. For those adopting a child below the age of three months or surrogate mothers, 12 weeks of leave may be availed.

Further, after the expiry date, the employers may grant women a ‘work from home’ option, depending on the nature of the work and the employer. For establishments that employed 50 or more people, a creche or childcare facility was made mandatory. 

The amendment allowed a medical bonus of Rs. 3,500. Additionally, a benefit of Rs. 6,000 was provided for pregnant women and lactating mothers, under the National Food Security Act, 2013 .

The provision in case of inconsistency

Section 27 of the Act provides a route for what would happen in case another law contrasts with its provisions. The Act would prevail over any provisions of the legislation inconsistent with it. 

Other Acts offering maternity benefits

Working journalists (condition of service) and miscellaneous provisions act, 1955  .

This Act offers 12 weeks of maternity leave to a woman working in a newspaper establishment. Concerning eligibility, the woman must be employed for at least a year of service and must produce a medical certificate from an authorized medical practitioner. The employer, at their discretion, may extend this to 3 months from the date of start of the leave, or six weeks from the same, whichever is earlier. The Act also provides for maternity leave in cases of miscarriage or abortion, however, it must not exceed six weeks.

Employee State Insurance Act, 1948  

This Act applies to those earning less than Rs. 21,000 per month, for 26 weeks. It covers non- government factories. Thus, it is for the benefit of those women who work in low-income jobs. Additionally, it contains a provision to extend its application to other establishments, provided they employ more than 20 people. Several states have availed of this option, extending applications to places like shops, hotels, etc. The Act also provides for payment of an additional Rs. 5,000 in confinement (labour resulting in a living child, or labour after 26 weeks of the pregnancy), where necessary medical facilities are not available under the Employee State Insurance Scheme. 

Factories Act, 1948

The Factories Act, 1948 , applies to all factories that use power and employ ten or more workers; or do not use power and employ 20 or more workers [ Section 2(m )]. Section 79 allows maternity leave along with maternity benefits for 12 weeks. The Employee State Insurance Act and the Maternity Benefits Act supplement the working of this act.

The case: Preeti Singh v. State of UP and ors.

Facts of the case.

In the given case , the respondents granted the petitioner maternity till the date of 28th December 2019. Later, the petitioner filed for another maternity leave, from 17th March 2021 to 12th October 2021.

This was rejected a day before the leave was to come into effect, on 16th March 2021. The ground cited was that the next leave was sought before the two year period of the earlier leave being up. 

Uttar Pradesh Financial Handbook contains U.P. Fundamental Rules made by the governor of the state. Rules under it are also called ‘Subsidiary Rules’. It is framed under Section 241 (2) (b) of the Government of India Act, 1935 .

Section 13 of the Uttar Pradesh Fundamental Rules deals with provisions of maternity leave. The respondents relied on Section 153(1) of Uttar Pradesh’s Financial Handbook. The provision was inserted by the Uttar Pradesh Fundamental Rules 56 (Amendment and Validation) Act, 1975. It stipulated that there must be a minimum period of two years between the first and second maternity leave. Unless so, the second leave can not be granted.

The petitioner submitted that the issue in dispute in the present case had already been decided by Allahabad High Court in Richa Shukla v. State of U.P 2019. This contention was not disputed by the respondents- the state. 

Smt. Richa Shukla v. State of U.P. and ors.(2019)

The Allahabad High court’s 2019 judgement in Smt. Richa Shukla v. State of U.P. and others was reiterated in the present case. The facts of this case are largely similar to Preeti Singh . The employer denied maternity leave to his employee based on Section 153 of the U.P. Financial Handbook. The court denied this contention, relying on Section 27 of the Maternity Benefits Act, 1961, The provision stipulates that the 1961 Act would prevail over laws inconsistent with it, irrespective of whether the inconsistent law is made before or after it. 

Findings of the Court 

The Court relied on Smt. Richa Shukla v. State of U.P. in the given case, quoting extensively from it.

The Court reiterated Section 5 of the Maternity Benefits Act. The provision entitles every employer to be liable to women who avail maternity benefits i.e., paying her the average daily wage for the period of her absence.

It also laid down that women would not be entitled to maternity benefits if they have not worked in the employer’s establishment for at least 80 days in the past 12 months (provided the woman immigrated to Assam, and was pregnant at the time of immigration). This was the only limitation in this context. There was no parallel provision in the Act as the UP Handbook. 

Most importantly, Section 27 of the Act states that provisions of the 1961 act shall override anything inconsistent with it. Thus, the stipulations in Rule 153(1) of UP’s Financial Handbook would be overridden by the Act.

The Court concluded that the respondent committed a patent error in relying on the Financial Handbook. Consequently, it granted the petitioner her prayer.

Legal Impact

The Hon’ble High Court’s judgement sets a precedent for similar cases under the Working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955 . The judgement may be relied on in future cases where Section 153 of the U.P. Financial Rules is used to nullify maternity benefits under the Union legislation. This would be considered to be legally unsound as Section 16 of the Working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955 has a similar saving clause as the Maternity Benefit Act. Thus, a denial of maternity leave under Section 153 of the U.P. Financial Rules would not be allowed. 

Social Impact

The Allahabad High Court judgements reiterated the importance of maternity leaves.  It denied the employer’s attempt at looking at loopholes in the law to deny women this leave, acknowledging the special hurdles she faces because of the patriarchal society. Additionally, it gave precedence to the Maternity Benefit Act, which aims at gender justice, instead of the one limiting its scope and consequently denying its objective. Thus, this judgement upholds values of equity and affirmative action, allowing women to be able to participate in the workforce more freely. It is another tiny step to rectifying our skewed sex ratio in labour participation of women in India. 

However, the judgement also highlights how employers try to look for loopholes out of paid maternity leave benefits. This is a unique problem in India, as maternity benefit laws in most other countries place the onus on the government to provide maternity benefits. This is the case in Australia, Canada, and France . In India, the employers are to provide them. This is a significant critique of the Maternity Benefits Act. This causes employers to keep looking for ways to avoid complying with the provisions of the Act- the cost of paying wages during the 26 weeks and, in some facilities, the cost of maintaining a creche facility.

In many cases, employers shy away from hiring women employees to avoid this scenario. It is estimated that around 11 Lakh to 18 Lakh jobs for women will be lost in the four years pursuing the implementation of this act. This provision, in such cases, ends up acting to the detriment of the objective of the act. This makes a powerful case for governments offering Maternity Benefits, or in the least, sharing the cost with employers.

The judgement in Preeti Singh v. State of Uttar Pradesh and ors. (2021) makes it clear that the provision of a minimum duration of two years between maternity leaves is not mandatory to avail benefits. It also reiterates an important principle of constitutional law by giving precedence to the provision that categorically lays down that it would prevail over others. 

In the future, there is a possibility that Section 153 of the U.P. Financial Rules may be challenged in the court for being inconsistent with the provisions of the Maternity Benefit Act. The argument of the state-level rule being inconsistent with a central law may also be invoked. The plea might be invoked to strike down the parts of the U.P. rules inconsistent with the central law as unconstitutional.

• https://labour.gov.in/sites/default/files/Factories_Act_1948.pdf
• https://corporate.cyrilamarchandblogs.com/2017/07/relevant-know-maternity-benefits-act-employees-state-insurance-act/
• https://egazette.nic.in/WriteReadData/2013/E_29_2013_429.pdf
• https://labour.gov.in/whatsnew/maternity-benefit-amendment-act2017
• https://blog.ipleaders.in/the-maternity-benefit-act/#National_Guidelines_for_setting_up_and_running_creches_under_the_Maternity_Benefit_Amendment_Act_2017
• https://www.esic.nic.in/attachments/actfile/a4be21587177569bb213b8254b83148e.pdf
• https://cuts-cart.org/pdf/Delhi-Shops-and-Establishments-Act.pdf

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Maternity Benefit Act, 1961

An Act to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits. Be it enacted by Parliament in the Twelfth Year of the Republic of India as follows-

• Section 1. Short title, extent and commencement.
• Section 2. Application of Act.
• Section 3. Definitions.
• Section 4. Employment of, or work by, women prohibited during certain periods.
• Section 5. Right to payment of maternity benefit.
• Section 5A. Continuance of payment of maternity benefit in certain cases.
• Section 5B. Payment of maternity benefit in certain cases.
• Section 6. Notice of claim for maternity benefit and payment thereof.
• Section 7. Payment of maternity benefit in case of death of a woman.
• Section 8. Payment of medical bonus.
• Section 9. Leave for miscarriage, etc.
• Section 9A. Leave with wages for tubectomy operation.
• Section 10. Leave for illness arising out of pregnancy, delivery, premature birth of child, miscarriage, medical termination of pregnancy or tubectomy operation.
• Section 11. Nursing breaks.
• Section 11A. Créche facility.
• Section 12. Dismissal during absence of pregnancy.
• Section 13. No deduction of wages in certain cases.
• Section 14. Appointment of Inspectors.
• Section 15. Powers and duties of Inspectors.
• Section 16. Inspectors to be public servants.
• Section 17. Power of Inspector to direct payments to be made.
• Section 18. Forfeiture of maternity benefit.
• Section 19. Abstract of Act and rules thereunder to be exhibited.
• Section 20. Registers, etc.
• Section 21. Penalty for contravention of Act by employer.
• Section 22. Penalty for obstructing Inspector.
• Section 23. Cognizance of offences.
• Section 24. Protection of action taken in good faith.
• Section 25. Power of Central Government to give directions.
• Section 26. Power to exempt establishments.
• Section 27. Effect of laws and agreements inconsistent with this Act.
• Section 28. Power to make rules.
• Section 29. Amendment of Act 69 of 1951.
• Section 30. Repeal.

1. Short title, extent and commencement.

(1) This Act may be called the Maternity Benefit Act, 1961.

(2) It extends to the whole of India. The words “except the State of Jammu and Kashmir” omitted by Act 51 of 1970, s. 2 and the Schedule. (w.e.f. 1-9-1971)

(3) It shall come into force on such date as may be notified in this behalf in the Official Gazette,- (a) in relation to mines and to any other establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances, by the Central Government; and

(b) in relation to other establishments in a State, by the State Government.

2. Application of Act.

(1) It applies, in the first instance,-

(a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances;

(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months.

Provided that the State Government may, with the approval of the Central Government, after giving not less than two months notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.

(2) Save as otherwise provided in sections 5A and 5B, nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employees State Insurance Act, 1948 (34 of 1948), apply for the time being.

3. Definitions.

In this Act, unless the context otherwise requires,- (a) “ appropriate Government ” means, in relation to an establishment being a mine, or an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances, the Central Government and in relation to any other establishment, the State Government;

(b) “ child ” includes a still-born child;

(ba) “ commissioning mother ” means a biological mother who uses her egg to create an embryo implanted in any other woman.

(c) “ delivery ” means the birth of a child;

(d) “ employer ” means-

(i) in relation to an establishment which is under the control of the Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department; (ii) in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority; (iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person;

(e) “ establishment ” means-

(i) a factory; (ii) a mine; (iii) a plantation; (iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; (iva) a shop or establishment; or (v) an establishment to which the provisions of this Act have been declared under sub-section (1) of section 2 to be applicable;

(f) “ factory ” means a factory as defined in clause (m) of section 2 of the Factories Act, 1948;

(g) “ Inspector ” means an Inspector appointed under section 14;

(h) “ maternity benefit ” means the payment referred to in sub-section (1) of section 5;

(ha) “ medical termination of pregnancy ” means the termination of pregnancy permissible under under the provisions of Medical Termination of Pregnancy Act, 1971;

(i) “ mine ” means a mine as defined in clause (j) of section 2 of the Mines Act, 1952;

(j) “ miscarriage ” means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code ;

(k) “ plantation ” means a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951;

(l) “ prescribed ” means prescribed by rules made under this Act;

(m) “ State Government ”, in relation to a Union territory, means the Administrator thereof;

(n) “ wages ” means all remuneration paid or payable in cash to a woman, if the terms of the contract 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 food grains and other articles, but does not include-

(i) any bonus other than incentive bonus; (ii) over-time 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;

(o) “ woman ” means a woman employed, whether directly or through any agency, for wages in any establishment.

4. Employment of, or work by, women prohibited during certain periods.

(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy.

(2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy.

(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub-section (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.

(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.

5. Right to payment of maternity benefit.

(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.

Explanation- For the purpose of this sub-section, the average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest.

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery: Provided that the qualifying period of eighty days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.

Explanation- For the purpose of calculating under this sub-section 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 under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the date of her expected delivery: Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery: Provided further that where a woman dies during this period, the maternity benefit shall be payable payable only for the days up to and including the day of her death: Provided also that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the Child.

(4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.

(5) In case 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.

STATE AMENDMENT Assam Amendment of Section 5 of Central Act 53 of 1961 (as amended by Assam Act 12 of 1964).- In the explanation appended to sub-section (1) of section 5 of the principal Act, as amended by the Assam Act 12 of 1964, the word “six” appearing after the words “multiplied by” shall be substituted by the word “seven”. [Vide Assam Act, 2 of 1984, s. 2.]

5A. Continuance of payment of maternity benefit in certain cases.

Every woman entitled to the payment of maternity benefit under this Act shall, notwithstanding the application of the Employees’ State Insurance Act, 1948 (34 of 1948), to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under section 50 of that Act.

5B. Payment of maternity benefit in certain cases.

Every woman-

(a) who is employed in a factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948 (34 of 1948), apply; (b) whose wages (excluding remuneration for overtime work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and (c) who fulfils the conditions specified in sub-section (2) of section 5,

shall be entitled to the payment of maternity benefit under this Act.

6. Notice of claim for maternity benefit and payment thereof.

(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit- (a) who is employed in a factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948, apply; (b) whose wages (excluding remuneration for overtime work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and (c) who fulfils the conditions specified in sub-section (2) of section 5,

(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.

(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.

(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.

(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.

(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.

7. Payment of maternity benefit in case of death of a woman.

If a woman entitled to maternity benefit or any other amount under this Act, dies before receiving such maternity benefit or amount, or where the employer is liable for maternity benefit under the second proviso to sub-section (3) of section 5, the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 6 and in case there is no such nominee, to her legal representative .

8. Payment of medical bonus.

(1) Every woman entitled to maternity benefit under this Act shall shall also be entitled to receive from her employer a medical bonus of one thousand rupees, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

(2) The Central Government may before every three years, by notification in the Official Gazette, increase the amount of medical bonus subject to the maximum of twenty thousand rupees.

9. Leave for miscarriage, etc.

In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.

9A. Leave with wages for tubectomy operation.

In case of tubectomy operation, a woman shall, shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of her tubectomy operation.

10. Leave for illness arising out of pregnancy, delivery, premature birth of child, miscarriage, medical termination of pregnancy or tubectomy operation.

A woman suffering from illness arising out of pregnancy, delivery, premature birth of child, miscarriage, medical termination of pregnancy or tubectomy operation shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.

11. Nursing breaks.

Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months.

11A. Créche facility.

(1) Every establishment having fifty or more employees shall have the facility of créche within such distance as may be prescribed, either separately or along with common facilities: Provided that the employer shall allow four visits a day to the creche by the woman, which shall also include the interval for rest allowed to her.

(2) Every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act.

12. Dismissal during absence of pregnancy.

(1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service.

(2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus: Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both.

(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.

(c) Nothing contained in this sub-section shall affect the provisions contained in sub-section (1).

13. No deduction of wages in certain cases.

No deduction from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of this Act shall be made by reason only of- (a) the nature of work assigned to her by virtue of the provisions contained in sub-section (3) of section 4; or (b) breaks for nursing the child allowed to her under the provisions of section 11.

14. Appointment of Inspectors.

The appropriate Government may, by notification in the Official Gazette, appoint such officers as it thinks fit to be Inspectors for the purposes of this Act and may define the local limits of the jurisdiction within which they shall exercise their functions under this Act.

15. Powers and duties of Inspectors.

An Inspector may, subject to such restrictions or conditions as may be prescribed, exercise all or any of the following powers, namely:- (a) enter at all reasonable times with such assistants, if any, being persons in the service of the Government or any local or other public authority, as he thinks fit, any premises or place where woman are employed or work is given to them in an establishment, for the purposes of examining any registers, records and notices required to be kept or exhibited by or under this Act and required their production for inspection;

(b) examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment: Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself;

(c) require the employer to give information regarding the names and addresses of women employed, payments made to them, and applications or notices received from them under this Act; and

(d) take copies of any registered and records or notices or any portions thereof.

16. Inspectors to be public servants.

Every Inspector appointed under this Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).

17. Power of Inspector to direct payments to be made.

(1) Any woman claiming that– (a) maternity benefit or any other amount to which she is entitled under this Act and any person claiming that payment due under section 7 has been improperly withheld; (b) her employer has discharged or dismissed her during or on account of her absence from work in accordance with the provisions of this Act, may make a complaint to the Inspector.

(2) The Inspector may, of his own motion or on receipt of a complaint referred to in sub-section (1), make an inquiry or cause an inquiry to be made and if satisfied that- (a) payment has been wrongfully withheld, may direct the payment to be made in accordance with his orders; (b) she has been discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may pass such orders as are just and proper according to the circumstances of the case.

(3) Any person aggrieved by the decision of the Inspector under sub-section (2) may, within thirty days from the date on which such decision is communicated to such persons, appeal to the prescribed authority.

(4) The decision of the prescribed authority where an appeal has been preferred to it under sub-section (3) or of the Inspector where no such appeal has been preferred, shall be final.

(5) Any amount payable under this section shall be recoverable by the Collector on a certificate issued for that amount by the Inspector as an arrear of land revenue.

18. Forfeiture of maternity benefit.

If a woman works in any establishment after she has been permitted by her employer to absent herself under the provisions of section 6 for any period during such authorised absence, she shall forfeit her claim to the maternity benefit for such period.

19. Abstract of Act and rules thereunder to be exhibited.

An abstract of the provisions of this Act and the rules made thereunder in the language or languages of the locality shall be exhibited in a conspicuous place by the employer in every part of the establishment in which women are employed.

20. Registers, etc.

Every employer shall prepare and maintain such registers, records and muster-rolls and in such manner as may be prescribed.

21. Penalty for contravention of Act by employer.

(1) If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees: Provided that the court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lesser term or fine only in lieu of imprisonment.

(2) If any employer contravenes the provisions of this Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both: Provided that where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto.

22. Penalty for obstructing Inspector.

Whoever fails to produce on demand by the Inspector any register or document in his custody kept in pursuance of this Act or the rules made thereunder or conceals or prevents any person from appearing before or being examined by an Inspector shall be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

23. Cognizance of offences.

(1) Any aggrieved woman, an office-bearer of a trade union registered under the Trade Unions Act, 1926 (16 of 1926) of which such woman is a member or a voluntary organisation registered under the Societies Registration Act, 1860 (21 of 1860) or an Inspector, may file a complaint regarding the commission of an offence under this Act in any court of competent jurisdiction and no such complaint shall be filed after the expiry of one year from the date on which the offence is alleged to have been committed.

(2) No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.

24. Protection of action taken in good faith.

No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or of any rule or order made thereunder.

25. Power of Central Government to give directions.

The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution of the provisions of this Act and the State Government shall comply with such directions.

26. Power to exempt establishments.

If the appropriate Government is satisfied that having regard to an establishment or a class of establishments providing for the grant of benefits which are not less favourable than those provided in this Act, it is necessary so to do, it may, by notification in the Official Gazette, exempt, subject to such conditions and restrictions, if any, as may be specified in the notification, the establishment or class of establishments from the operation of all or any of the provisions of this Act or of any rule made thereunder.

27. Effect of laws and agreements inconsistent with this Act.

(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act: Provided that where under any such award, agreement, contract of service or otherwise, a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under this Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefits in respect of other matters under this Act.

(2) Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those to which she would be entitled under this Act.

28. Power to make rules.

(1) The appropriate Government may, subject to the condition of previous publication and by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-

(a) the preparation and maintenance of registers, records and muster-rolls; (b) the exercise of powers (including the inspection of establishments and the performance of duties by Inspectors for the purposes of this Act; (c) the method of payment of maternity benefit and other benefits under this Act in so far as provision has not been made therefor in this Act; (d) the form of notices under section 6; (e) the nature of proof required under the provisions of this Act; (f) the duration of nursing breaks referred to in section 11; (g) acts which may constitute gross misconduct for purposes of section 12; (h) the authority to which an appeal under clause (b) of sub-section (2) of section 12 shall lie; the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof; (i) the authority to which an appeal shall lie against the decision of the Inspector under section 17; the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof; (j) the form and manner in which complaints may be made to Inspectors under sub-section (1) of section 17 and the procedure to be followed by them when making inquiries or causing inquiries to be made under sub-section (2) of that section; (k) any other matter which is to be, or may be, prescribed.

(3) Every rule made by the Central Government under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

29. Amendment of Act 69 of 1951.

In section 32 of the Plantations Labour Act, 1951. (a) in sub-section (1), the letter and brackets “(a)” before the words “in the case of sickness”, the word “and” after the words “sickness allowance” and clause (b) shall be omitted; (b) in sub-section (2), the words “or maternity” shall be omitted.

30. Repeal.

On the application of this Act- (i) to mines, the Mines Maternity Benefit Act, 1941 (19 of 1941); and (ii) to factories situate in the Union territory of Delhi, the Bombay Maternity Benefit Act, 1929 (Bom. Act VII of 1929), as in force in that territory, shall stand repealed.

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