Maternity Benefit Act, 1961

Table of Contents

Introduction

A maternity benefit is one to which each woman is entitled, and for which her employer is liable, to pay the maternity benefit, which is the amount payable to her at the rate of the average daily wage for the time of her actual absence. Maternity Benefits would seek to control pre- and post-birth jobs of women workers in some institutions and compensate for maternity and certain other benefits. The basic aim of offering maternity benefits is to maintain motherhood self-respect, protect women’s health, complete child protection, etc. It became necessary to give working women maternity leave and other maternity allowances because of the increasing number of female employees in the government and private sector.

Meaning of maternity benefit (Section 5)

Under the provisions of this Act, for the duration of her actual absence immediately preceding and including the day of her delivery and for the six weeks immediately following that day, each woman shall be entitled, and her employer shall be liable for, payment of the maternity benefit at the rate of the average daily wage.

Applicability of the act (Section 2)

All Government-owned establishments, including mines, factories, and plantations.
Any institution where people are working for equestrian, acrobatic, and other entertainment shows.
Any shop or establishment in the State where 10 or more people are/were working, during the preceding 12 months, under any other law relating to shops or establishments.
Except those to which the Employees’ State Insurance Act, 1948 (ESI) are applicable for the time being. (S.5A & 5B)
For women who are unable to claim under ESI – Section 50 (because earnings are above 3000 pm) then they can claim under MBA.

To Whom Does It Apply? (Section 5)

Women would have served from her planned delivery date for no less than 80 days in the 12 preceding months.
Not to a woman who had immigrated to Assam or was then pregnant.
If the mother dies during childbirth or in the immediate after a delivery period and the child survives, then the employer is liable to pay the child the full maternity benefit of that time.
But if the child dies, then the benefit is calculated up to and including the date of death of the child.
Women working on a casual or collective roll basis even entitled to daily wages.

Notice of Claim (Section 6)

Note to the employer in writing in the prescribed form.
Maternity amount paid to be specified in the notice given to her or her nominee.
During the period, it will not work at any establishment.
In the case of a pregnant woman, the notice shall state the date she will be away from work, not a date sooner than six weeks from the date of her planned delivery.
Advance payment paid prior to leave and due to sum payable on proof of delivery of the infant.
The employer shall authorize such a woman to be away from the institution until six weeks after the day on which she delivered.
If notice is not given prior delivery, it can be given after delivery as soon as possible.
However, failure to notify does not disentitle the woman to the benefit of the Act.

Granting of Paid Leave in Various Cases

SECTION	PURPOSE OF LEAVE	PERIOD	NOTE
5(3)	Pregnancy and Delivery	12 Weeks	Not more than 6 weeks preceding delivery; Irrespective of the number of children had
9	Tubectomy operation	2 Weeks	Starting immediately the next date following
10	Illness – due to pregnancy, delivery, miscarriage, medical termination, tubectomy operation	Up to 1 Month	In addition to: Absence allowed under Section 6 & Section 9
11	Nursing breaks	Two breaks of the prescribed duration	In addition to the absence allowed to her during the course of daily work

Penalty for Contravention of Act by Employers (Section 21)

If an employer violates the provisions of this Act or the rules laid down therein, he shall be punishable by imprisonment of up to three months, or by a fine of up to five hundred rupees, or both, and if the violation is of any provision relating to maternity benefit or payment of any other amount and the maternity benefit or sum by the employer has not already been recovered, the court shall, in addition, recover such maternity benefit or amount as if it were fine, and pay the same to the person entitled thereto.[1]

MATERNITY BENEFIT (AMENDMENT) ACT, 2017

As of April 01, 2017, the provisions of The Maternity Benefit (Amendment) Act, 2017 (MB Amendment Act) became applicable. Crèche facility provision (Section 11 A) however, took effect as of July 01, 2017.

Highlights of the Amendment

The rise in Maternity Benefit: The paid maternity leave time (“Maternity Benefit”) to which a woman employee is entitled has been increased to 26 (twenty-six) weeks. In addition, the Act previously allowed pregnant women to reap Maternity Benefit for just 6 ( six) weeks before the planned delivery date. Now the time is increased to eight (eight) weeks. Maternity benefit of 26 weeks may be extended to women who are already on maternity leave at the time this amendment was enforced.
No increased third-child benefit: The increased maternity benefit is available only for the first two babies. The amendment provides that only 12 (twelve) weeks of maternity benefit shall be granted to a woman with two or more surviving children, of which no more than 6 (six) shall be taken before the date of the expected delivery.
Adoption/surrogacy: A woman who adopts a child under the age of 3 ( three) months or a commissioning mother (means a biological mother who uses her egg to produce an embryo implanted in some other woman) shall be entitled to Maternity Benefit for a period of 12 (twelve) weeks from the date on which the infant is handed over to the adopting mother or commissioning mother.[2]
The facility of Creche: The establishment with 50 (fifty) or more employees must have a compulsory creche facility (within the specified distance from the establishment), either separately or in combination with other specific establishments. The woman is also required to go to the creche for 4 (four) visits a day, which will include the rest period given to her.
Work from home: If the structure of a woman’s assigned job is such that she can work from home, an employer will require her to work from home for the Maternity Benefit duration. There may be a reciprocal understanding between the employer and the worker on working conditions from home.

Case Laws

Rachna Chaurasiya Vs. State of U.P. and others

Division Bench of this Court ordered the Government of the State to allow maternity leave to all women with full payment of 180 days, irrespective of the nature of the employment, that is to say permanent, temporary / ad hoc or conditional. The State respondent was further directed to grant 730 days of Child Care Leave any female employee who is hired on a permanent, contingent, ad hoc or temporary basis has minor children with a rider that the child will not be older than 18 years.

Ms.Pooja Jignesh Doshi Vs The State of Maharashtra and another.

The court held that even in case of birth by surrogacy the parents who have lent the ova and the sperm would be entitled to avail leave. The mother is entitled to maternity leave and the paternity leave from her partner.[3]

[1] https://labour.gov.in/sites/default/files/TheMaternityBenefitAct1961.pdf

[2] https://www.icsi.edu/media/portals/22/Article%20on%20MBA%20Act,%202017.pdf

[3] http://www.whatishumanresource.com/Maternity-Benefit-Act-1961

Author: Bahaar,
Amity Law School, Noida 3rd Year student