Maternity Benefit is a benefit given to the mothers-to-be or the mothers of the newly born with

fully paid leave from employment along with other benefits before and after the delivery of the
child, with a motive to facilitate the women in taking care of the child.

The Maternity Benefit Act, 1961 (hereinafter referred to as ‘the Act’) was defined to be ‘a
beneficial piece of legislation and its object is to ensure the security of tenure for the working
woman’ in the case of Shri Swami Vivekanand Shikshan Sansthechya Sevakanchi Sahakari
Patsanstha Maryadit v. Kumari Deepa Narayan Jadhav (2016).

The case of Mamta v. Employee State Insurance Corpn. (2014) held that giving birth to and
taking care of the child is covered under the fundamental right of the child and the woman and
hence the employer shall be held liable to pay maternity benefits.

APPLICABILITY

Under the scope of Section 2(1)(a), the Act applies to all establishments including:

 factories,
 plantations,
 mines,
 shops or establishments covered under the ambit of law having 10 or more than 10
employees. (As provided by the 2017 amendment) This includes the private sector as
well.

In the case of Thomas John Muthoot v. Labour Officer (2014) it was held that a firm with
only 3 employees will not be covered under the Act.

 government organizations,
 organizations centered by the central government or
 an establishment wherein persons are employed for the exhibition of equestrian,
acrobatics, and other performances

NOTE: The Maternity benefit Act shall be applied to any and all establishments having 10 or
more than 10 employees.

ELIGIBILITY

In Section 5(2) of the Act, it is mentioned that a woman, to be eligible for the maternity benefits
under the Act, has to be employed in the establishment for not less than 80 days in the twelve
months immediately preceding the expected delivery of the woman. (The period has been
reduced from 160 days to 80 days by the virtue of 2017 amendment)

(Note: This period of 80 days does not apply to any woman who has immigrated to the state of
Assam and was pregnant during the immigration)
The ambit Women employee covers all kinds of employment whether direct or through agency
or contracts.

In the case of Glem Brook Estate v. Plantation Office (2012), it was held that even the daily
wage workers are entitled to Maternity benefits under the scope of the Act.

Maternity benefits and a fully paid leave cannot be denied to contractual employees. This was
the decision of the Hon’ble Central Administrative Tribunal in the case of Anuradha
Arya v. Govt. Girl Sr. School (2017).

DURATION OF LEAVE

As per the provisions mentioned in the Act, the duration of the maternity leave in different cases
is as follows:

 26 weeks, for a woman with up to 2 surviving children. The woman, at discretion, can
take up to 8 weeks of maternity leave before the delivery and the remaining 18 weeks
after the delivery.
 12 weeks, for a woman already having 2 or more children. Herein, the woman, at
discretion, can take up to 6 weeks of leave before the delivery and the remaining 6 weeks
after the delivery of the child.
 12 weeks, for a woman who has adopted a child below the age of 3 months from the date
of handover of the child.
 12 weeks, for a commissioning mother, i.e., a mother who puts her embryo in another
woman (another woman is called the host/surrogate) from the day of handover of such
child.
 6 weeks, for a woman who has gone through miscarriage from the date of termination of
pregnancy, on the production of proof, as mentioned in Section 6 of the Act.

Further, a woman who has gone through a miscarriage but hasn’t worked in the establishment for
160 days in the preceding 12 months can also claim the leave for miscarriage as decided in the
matter of Management of Kallayar Estate, Jay Shree Tea and Industries Ltd. v. Chief
Inspector of Plantations (1998).

 2 weeks, for a woman who has gone through Tubectomy (family planning) from the date
of the operation, on the production of proof under the ambit of Section 9(A) of the Act.
 1 month, for women who suffer illnesses arising out of pregnancy, miscarriage,
premature birth, delivery, medical termination, or tubectomy along with wages as per
maternity benefits.

KIND OF WORK

The women employee cannot be employed to complete tasks of the following nature under the
ambit of Section 4 of the Act:

 Work of arduous nature

  Work involving long hours of standing
 Work that is likely to intervene with the pregnancy or the normal growth of the fetus
 Work which is likely to cause her miscarriage
 Work can adversely affect her health.

It was held by the court in the case of MCD v. Female Workers (2000), that pregnant women
employees can be compelled to undertake tasks involving hard labor at the time of advanced
pregnancy.

BENEFITS PROVIDED

 Monetary Benefits: Under the ambit of Section 5 (1), every woman is entitled to receive
maternity benefits calculated at the rate of average daily wage for the period of her actual
absence i.e., for the whole of the maternity leave (including the period preceding the
delivery, the actual delivery date, and the period post-delivery)
 Nursing Breaks: As per Section 11 of the Act, every woman is entitled to 2 nursing
breaks of the prescribed duration for nursing the child until the child turns 15 months old,
apart from the rest interval allowed, through her daily course of work.
 Creche Facility: As per Section 11(A) of the Act (added via 2017 amendment) every
establishment with more than 50 employees is prescribed to have a creche facility for the
baby and the mother should be allowed 4 visits to the creche in a day which shall include
the nursing breaks and the rest intervals allowed to her.
 Work From Home: As per Section 5 (5) of the Act (as inserted by the 2017 amendment)
if the job profile of the women facilitates, the employer may allow the provision of work
from home to such women after the completion of the maternity break. The period and
conditions of such work can be mutually decided between the employer and the
employee.
 Medical Bonus: The woman is entitled to receive an amount of Rs. 1000 from the
employer in case the pre-natal and post-natal care is not provided by the employer at zero
cost as mentioned in Section 8(1) of the Act.
 Prevention from dismissal: The Act under the provision of Section 12 makes it
unlawful for the employer to dismiss or deprive an employee of claiming maternity
benefits as prescribed by the Act. Except in the cases of gross misconduct by the woman
employee.

The women employee on being dismissed or deprived of such benefits may, within 60 days from
the date of the order being received, file an appeal to the prescribed authority.

PAYMENT OF MATERNITY BENEFITS UNDER DIFFERENT CIRCUMSTANCES

As per the provisions of the act, in cases of death, the maternity benefit will be provided
accordingly:

 Wherein both, the mother and child survive then, the maternity benefits will be provided
as per 26 weeks.
  In case the woman survives but the child doesn’t even then the maternity benefit of the
duration of leave shall be provided. Herein as per Section 7 of the Act, the maternity
benefit will be provided to the legal representative or nominee.
 If the mother dies and the child survives, the maternity benefit will still be provided for
the child.
 In the case where both, the mother and the child die then the maternity benefit till the
time of the death will be provided, which will also include the day of the death.
 In the case where the mother died and the child survived but later died too, the maternity
benefit will be provided till the day of the child’s death.

NOTICE

As per the provisions of Section 6 of the Act, a women employee is required to submit a written
notice to her employer about the maternity leave mentioning the nominee in case of death. The
notice should mention the date from which she will be on leave which shall not be more than 8
weeks from the expected date of delivery.

In case of failure of submitting the notice before delivery, the same can be done after the delivery
has been done. In case of failure, the women can be deprived of maternity benefits.

RESTRICTIONS AS TO RESIGNATION

As per the provisions of the act, there are no restrictions as to the resignation of the women
employee after claiming the maternity benefits under the Act.

PAYMENT OF THE MATERNITY BENEFIT

As per the provisions of Section 6(5) of the Act, the amount for maternity benefits preceding the
date of delivery shall be paid in advance and for the period after the delivery, the payment shall
be made within 48 hours of production of proof.

COMBINING OF LEAVES

As per the CCS Rules, 1972, for the government servants, maternity leave can be combined with
any other kind of leave. Also, the maternity leave does not disturb the course of leaves otherwise.

DISMISSAL OF THE MOTHER

As per Section 12 of the Act, the employer, in case of gross misconduct can dismiss the
employee or deprive her of the maternity benefit or the bonus or both by giving an order in
writing. The term gross misconduct is not defined in the Act but Section 28 empowers states to
decide what prescribes gross misconduct. In the case of National Tobacco Co. of India Ltd.
and Ors vs Fourth Industrial Tribunal and Ors (1959) it was observed by the court that gross
conduct in itself means dismissal. If there is a case of gross conduct, there will be left no scope
for victimization and the employee might not be in a position to challenge the order.
PENALTIES FOR NON-COMPLIANCE / DEFAULT

S.No. Section Default Penalty

1)Failure in paying benefits Imprisonment up to 3 months
or discharge or dismissal of fine up to Rs. 500/- or both
the mother, on account of
absence due to maternity,  
from the employment (apart
from the provisions of  
Section 12 i.e., in cases of
Gross Misconduct)  
Section 21 of the
1)
Act.    
 
  2)Contravention into the  
provisions of the act by the
employer regarding  
maternity benefit or payment
of any other amount and Recovery of such maternity
when recovery of such benefit or amount as if it were
maternity benefit or the a fine and the same is paid to
amount has not already been the entitled person by the
made. court.
On-demand made by the
inspector if the person fails
to produce any registered
Section 22 of the Imprisonment up to 3 months
2) document or conceals a
Act or a fine of Rs. 500/- or both
document or prevents a
person from appearing
before the inspector

Creche Facility Introduced by Maternity Benefit (Amendment)

Act, 2017
In terms of Section 11A of the Maternity Benefit Act, every establishment to which the Act
applies and have fifty or more employees must establish a Crèche facility within such distance as
may be prescribed through notification. The Creche must be established either separately or
along with common facilities. The employer must allow women at least four visits a day to the
crèche and it shall also include the interval for rest allowed to her. Every establishment is
required to intimate in writing and electronically to every woman at the time of appointing her
initially regarding every benefit available under the Maternity Benefit Act.

National Guidelines for setting up and running creches under the

Maternity Benefit (Amendment) Act, 2017
Section 11A mandates the establishment of crèches within such distance as may be prescribed,
either separately or along with common facilities. As per Section 2(l), “prescribed” means
prescribed by rules made under this Act. Further, as per Section 28 of the Act, rules can be
prescribed by the State or Central Government as the case may be for carrying out the purposes
of the Act. The following are some of the key guidelines published in the Gazette by the Ministry
of Women and Child Development. 

Crèche For Whom

The use of a crèche facility is proposed to be extended to children of the age group of 6 months
to 6 years of all employees including temporary, daily wage, consultant and contractual
personnel. 

Crèche Location

The center should be near/at the workplace site or in the beneficiaries’ neighborhood, within 500
meters.

Timings

The crèche preferably should open for 8 hours to 10 hours. In this case, the workers can follow a
shift system. In case the establishment has day and night shifts, then the crèche should also be
run in shifts.

Facilities to be provided

Crèches should be concrete, with a min space of 10-12 sq.ft. per child, with ventilation, drinking
water and with no unsafe places such as open drains, pits, garbage bins near the center. Further,
other facilities to be provided include:

 A guard, who should have undergone police verification. 

 Ramps and handrails.
 Every Creche should have one supervisor per crèche.
 The Creche should have a minimum of one trained worker for every 10 children who are
under three years of age.
 For every 20 children above the age of three, the creche should have one trained worker
along with a helper.
 No plumbers, drivers, and electricians and other outside persons should be allowed inside
the crèche when children are present.
 A Crèche monitoring committee should be formed having representations from among
crèche workers, parents, and administration. 
  Forming a grievance redressal committee for inquiring into instances of sexual abuse.

Maternity Benefit (Mines and Circus) Amendment Rules 2019

It is pertinent to note these rules do not apply to Crèches established in Mines and Circus
establishments. Crèches in Mines are regulated by the Maternity Benefit (Mines and Circus)
Amendment Rules 2019. Some of the key provisions include:

 Rule 2 (b) – The crèches are set up for children under 6 years of age.
 Rule 4- The crèches are divided into 4 Types (A, B, C, D) based on the number of
women employed. 
 Rule 4- Basic Standard requirements to be provided. 
 Rule 8- The crèches shall be open during the whole day and open at night if the women
employees are at the office. 
 Rule 9- Restriction of access to outsiders. 
 Rule 10- Guidelines for medical arrangements. 

Are creche facilities mandatory?

The language of Section 11A of the Amendment Act, 2017 is that Crèche facilities shall be
established at “every establishment”. Thus, going by the rule of literal interpretation, it can be
inferred that the section mandates to establish crèches only in those “establishments” covered
under the definition of “establishment” under Section 3 (e) of the Act. 

Further, it can also be inferred that an “establishment” excluded under Section 2(2) or excluded
by notification under Section 26 of the Act, is not obliged to set up a crèche as mandated. 

As mentioned above, Section 11A’s mandate to set crèches applies to “establishments” under the
ambit of the Maternity Benefit Act, 1961. Further, the clarification notification issued on behalf
of The Maternity Benefit (Amendment) Act, 2017, clarified that as Section 2 has not undergone
an amendment, there are no changes regarding the application of the Act of 1961. As per Section
2(b), an “establishment” includes 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. 

Consequently, crèches are mandatory in all establishments covered under Delhi Shops and
Establishment Act, 1954. As per Section 2(5) of the 1954 Act, “commercial establishment”
means any premises wherein any trade, business or profession or any work in connection with, or
incidental or ancillary thereto is carried on..”. Further, as per Section 2(9) of the Act of 1954, “
‘establishment’ means a shop, a commercial establishment…”. 

Thus, Crèches are mandatory in companies, firms and consultant companies even though they
may be incorporated or registered under The Partnership Act, 1932 or Companies Act, 2013.

CONCLUSION
The Maternity Benefit Act, after all the precedents and amendments, covers the majority aspects
of leaves and other benefits to the mothers-to-be to facilitate and help them raise their child(ren)
in the very crucial first few months of their life as taking care of the child is a fundamental right
of both the child and the mother. Every human being has some basic rights which are important
for their existence. For the social, economic, and moral growth of the society, there was a need to
create balance. Thus, the framers of our constitution inserted certain provisions which
specifically included women and talks about maternity benefits like:

Article 42 which lays down provision for just and humane conditions of work and maternity
relief,

Article 14 – Right to social equality for all genders,

Article 15 – Right not to be discriminated against based on sex and also it empowers the State to
make special provisions for women,

Article 16 – Equal opportunities for all citizens in matters relating to employment or appointment
of any office under the State and

Article 21 – Right to Life and Personal Liberty in the context of providing a pregnant woman all
the basic facilities along with protection of her employment and livelihood.