Maternity leave policies under Indian labour law are designed to provide protection and support to women employees during and after pregnancy. The legislation governing maternity leave in India is The Maternity Benefit Act of 1961, which has been amended over the years to improve the benefits and coverage.
The latest amendment- The Maternity Benefit (Amendment) Act was made in 2017.
Key Provisions of the Maternity Benefit Act, 1961
1. Eligibility Criteria
- The Maternity Benefit Act applies to women employed in factories, mines, plantations, and establishments with 10 or more employees.
- A woman employee is eligible for maternity benefits if she has worked for a minimum of 80 days during the 12 months immediately before the date of her expected delivery.
2. Duration of Maternity Leave
- First Two Children: Women are permitted 26 weeks (182 days) of maternity leave. This can be utilised up to 8 weeks before the expected delivery date and the remaining 18 weeks post-delivery.
- Subsequent Children: For the third child and beyond, the maternity leave duration is 12 weeks (84 days) This can be utilised up to 6 weeks before the expected delivery date and the remaining 6 weeks post-delivery.
3. Adoption and Surrogacy
- Adoptive Mothers: Women adopting a child below the age of three months are qualified for 12 weeks' leave from the date of adoption.
- Surrogate Mothers: Commissioning mothers (those who have a child through surrogacy) are also entitled to 12 weeks of leave from the date the child is given to them.
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4. Miscarriage and Medical Termination of Pregnancy (MTP)
- In case of a miscarriage or medical termination of pregnancy, a woman is entitled to 6 weeks leave, starting from the date of the miscarriage or MTP.
5. Additional Leave for Illness
- Women can avail of an additional month (30 days) of leave for any illness as a result of pregnancy, delivery, premature birth, miscarriage, or medical termination of pregnancy, upon producing a medical certificate.
Financial and Job Security
1. Maternity Benefit (Wages)
The maternity benefit is equivalent to the average daily wage for the period of her actual absence. It is calculated based on the wages paid in the three months immediately before the date she is absent because of maternity.
2. Medical Bonus
If the employer is not able to provide free prenatal and postnatal care to the employee, she is entitled to a medical bonus of ₹3,500 (this amount may be subject to revision).
3. Nursing Breaks
Women returning to work after maternity leave are entitled to two nursing breaks along with the regular breaks, until the child is 15 months old.
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4. Job Protection
The Act prohibits the dismissal or removal of a female employee because of her pregnancy. Employers are also barred from employing a woman during the six weeks immediately after the date of her delivery or miscarriage.
If a woman is dismissed during her pregnancy, she can still claim maternity benefits.
Responsibilities of Employers
1. Notice of Maternity Leave
A woman employee must give written notice to her employer about her maternity leave, specifying the date from which she intends to start her leave. She may also request an advance payment of the maternity benefit for the period before her delivery.
2. Provision of Creche Facilities
Establishments with 50 or more employees are mandated to provide creche facilities (a nursery where babies and young children are cared for during the working day) within a prescribed distance, which the woman employee can visit four times a day, including during her rest interval.
Legal Recourse
Women who are denied maternity benefits or face discrimination due to pregnancy can file a complaint with the labour inspector or seek redressal through the appropriate labour court or tribunal. One can find a labour inspector by contacting the labour department of their state. The contact details are present on their respective State Labour Department website.
Issues like not receiving maternity benefits, and illegal termination during the period of maternity leave can be reported on the e-portal SAMADHAN (Software Application for Monitoring And Disposal, Handling of Industrial Disputes), which the Ministry of Labour and Employment launched to make the lives of workmen, management, trade unions and other stakeholders smooth.
These provisions aim to protect the health and well-being of the mother and the child, ensure financial security during the maternity period, and support women in balancing their professional and personal responsibilities.
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FAQs
1. Can maternity leave be extended beyond 26 weeks?
While the statutory provision is for 26 weeks, an employee can take additional unpaid leave if required, after the employer's approval. Additionally, the Act allows for up to one month of leave in case of illness arising out of pregnancy, delivery, premature birth, or miscarriage.
2. Is there a provision for maternity leave for adoptive mothers?
Yes, adoptive mothers are entitled to 12 weeks of maternity leave from the date of adoption if the child is below three months of age.
3. Are there provisions for maternity leave for commissioning mothers (surrogacy)?
Yes, commissioning mothers are entitled to 12 weeks of maternity leave from the date the child is handed over to them.
4. What if an employer denies maternity leave?
Denial of maternity leave is illegal. The employee can file a complaint with the Labour Commissioner or approach the appropriate legal forum for redressal.
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5. Is maternity leave applicable in the private sector?
Yes, the Maternity Benefit Act applies to the private and public sectors, including factories, mines, plantations, shops, and establishments with ten or more employees.
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Written by Anushka Patel
Anushka Patel is a second-year law student at Chanakya National Law University. She is a dedicated student who is passionate about raising public awareness on legal matters
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Further Reading
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