Abstract:
This paper aims to give a glance at the development of the major law relating to maternity
benefit, that is, the Maternity Benefit Act 1961. The major amendments that made the law
more inclusive and enlarged its scope are discussed, especially emphasizing the maternity
benefit amendment act of 2017. The aim and objective behind these laws are to protect from
the rigours of employment during the period of maternity and also to not let the natural duty
of child-bearing in women act as a deterrent in their employability.
Introduction:
In the simplest terms, maternity benefit is a payment or other allowance made by the state or an employer to a woman during pregnancy or after childbirth. 2 The shorter the definition, the lengthier the history, and the more complex the concept is to comprehend. One can say that the concept is ever-expanding, according to the changing needs of society. Maternity itself is the most instinctive feature of animal and human life, but with evolving cosmopolitan and industrial lifestyles, women are needed to join the workforce and make their numbers marked in the paid employments, in their respective countries. To not let childbearing and rearing a drawback to the opportunities that are rightfully theirs, provisions for maternity benefit are necessary The Need for Gender Equality in Workforce:
According to the World Economic Forum, the global pay gap between the sexes stood at 50% last year, 3 . Date by the world bank, on similar lines shows that India
has one of the lowest female participation in the workforce, in the entire world. According to
the same report, even countries like Afghanistan, have shown an upward trend in gender
equality in the formal economy. 4 Moreover, it is no less than true that the economic
dependence on women acts as an adding factor to various forms of crimes against women like child marriage, female infanticide, and dowry deaths. 5 A collective analysis of the data and associated social problems shows the need for pushing reforms more financial independence to achieve the social and economic justice, the constitution of India provides for. Indian Constitution and Special Protection of Women:
The Constitution of India through the Fundamental rights guarantees the rights of women
against any aggression by the state, and also guides the legislative policy of the state, in the
the direction of uplifting the position of women in the society, through the provisions in the
Directive Principles of the state policy. The constitution also lays down the fundamental duty
of every citizen to respect and protect the dignity of women. The rights and privileges for the
betterment of women are: right to equality in law 6 , right to social equality 7 right to social
equality in employment 8 right to adequate means of livelihood 9 , right to equal pay for equal work 10, right that the health and strength of workers both men and women are not abused 11 , requires the State to make effective provisions for securing the right to work and to education, 12 right to just and humane conditions of work and maternity relief 13, and right to improvement in employment opportunities and conditions of the working women 14. Maternity Benefit: An Ever-Expanding Horizon in Law
The original maternity benefit act 1961, has changed according to changing needs of society
to encompass within its scope various aspects related to motherhood and childbearing, by
various amendments which were passed in the parliament from time to time. The author has
tried to give a glance at the important developments that have been incorporated in the act, to keep the concept of maternity benefit alive and practically beneficial for women. The
Amendment Act of 2017 however is discussed separately in greater detail, due to the major
changes it has made in the concept of maternity provisions.
the original act did not provide for maternity benefit to persons employed for the exhibition
of equestrian, acrobatic, and such other performances, The act was amended in 1973 to
expanded the scope of maternity benefits to such persons. 15 The establishments did not include within its scope shops which were included in the act by an amendment in the year 1988. 16 Medical termination of pregnancy (MTP) i.e., terminating of pregnancy permissible under the provisions of the Medical Termination of Pregnancy Act, 1971, was not a valid ground for availing maternity benefit in the original act, it was only in the year 1995, that women
undergoing MTP were allowed the benefits of this act, although the period is restricted to six
weeks after her medical termination of pregnancy. 17
The original Act of 1961 only mandated the payment of maternity benefit for the period of
her actual absence immediately preceding and including the day of her delivery and for the
six weeks immediately following that day. 18 By the 21. Subs. by Act 61 of 1988 (w.e.f.10-1-1989). The period was extended to the period immediately preceding the day of her
delivery, the actual day of her delivery, and any period immediately following that day 19
Similarly, according to the original Act, no woman shall be entitled to maternity benefit
unless she has worked in an establishment of the employer from whom she claims maternity
benefit, for a period of not less than one hundred and sixty days in the twelve months
immediately preceding the date of her expected delivery this period was reduced in the year
1988 to 80 days. 20 The amount of medical bonus was increased from 25 rupees to 1000
rupees. 21 Maternity Benefit (Amendment Act), 2017
Increased Paid Maternity Leave:
The act only provided the maximum period for which any woman shall be entitled to
maternity benefit shall be twelve weeks, that is to say, six weeks up to and including the
expected day of delivery 22. This period was also increased to twenty-six weeks of which not
more than eight weeks are to proceed the day of her expected delivery by 27 Subs. for
“twelve weeks of which not more than six weeks” by.
[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:]
The Maternity Benefit Amendment Act has increased the duration of paid maternity leave
available for women employees from the existing 12 weeks to 26 weeks. Under the Maternity
Benefit Amendment Act, this benefit could be availed by women for a period extending up to a maximum of 8 weeks before the expected delivery date and the remaining time can be
availed after childbirth. For women who are having 2 or more surviving children, the duration
of paid maternity leave shall be 12 weeks (i.e., 6 weeks before and 6 weeks after the expected date of delivery).
Maternity leave for adoptive and commissioning mothers: “commissioning mother” means a
a biological mother who uses her egg to create an embryo implanted in any other woman; is
also given included under the provisions by the 23
Maternity leave of 12 weeks to be available to mothers adopting a child below the age of
three months from the date of adoption as well as to the commissioning mothers. The commissioning mother has been defined as a biological mother who uses her egg to create an embryo planted in any other woman.
Work from Home option:
The Maternity Benefit Amendment Act has also introduced an enabling provision relating to
work from home for women, which may be exercised after the expiry of the 26 week leave period. Depending upon the nature of work, women employees may be able to avail this benefit on terms that are mutually agreed with the employer.
Creche facility:
The Maternity Benefit Amendment Act makes creche facility mandatory for every
establishment employing 50 or more employees 24. Women employees would be permitted to visit the crèche 4 times during the day (including rest intervals)
The Maternity Benefit Amendment Act makes it mandatory for employers to educate women
about the maternity benefits available to them at the time of their appointment.
The provision in case of Death:
Provided further that where a woman, having been delivered of a child, dies during her
delivery or the period of six weeks immediately following the date of her delivery, leaving
behind, in either case, the child, the employer shall be liable for the maternity benefit for the
the entire period of six weeks immediately following the day of her delivery but if the child also dies during the said period, then, for the days up to and including the day of the death of the child. Further, where a woman, having been delivered of a child, dies during her delivery or the period immediately following the date of her delivery, for which she is entitled to 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.
Conclusion:
Gender equality is crucial to economic growth and sustainable development. It is recognized
as a cross-cutting objective within the ILO's Decent Work Agenda, and as a key goal within the 2030 Agenda for Sustainable Development. Goal 5 of the SDGs is devoted specifically to achieving gender equality and the empowerment of women and girls, but gender equality is also mainstreamed throughout the other sixteen goals. 26 To attain these goals and, participate in the global reach for promoting gender equality and labour welfare, maternity benefit is a quid-pro-quo. India has constantly been in the frontline, updating and modifying the laws for providing maternity benefits, as the need and changing circumstances require. In addition to the laws, there are various policies and schemes in implementation and in formulation to further the above-mentioned cause.
About the Author: Yameena Ahmad, Research intern
Stambh Organisation India
________________________________________________________________________________
1 Yameena Ahmad, is a 3 rd -year law student, pursuing LL.B. (Hons.) from the faculty of Law, University of
Lucknow. The Author is also working as a research intern at Stambh Organisation.
2 Mexico, powered by Oxford, https://www.lexico.com/definition/maternity_benefit.
3 World Economic Forum, 5 ways to improve gender equality at work,
https://www.weforum.org/agenda/2021/03/gender-equality-women-workplace-pay-gap/, last accessed 06:00
PM, 05 th July 2021.
4 World Bank Data, Labor force participation rate, female (% of female population ages 15+) (modelled ILO
estimate) - India, Nepal, Indonesia, Vietnam, Cambodia,
https://data.worldbank.org/indicator/SL.TLF.CACT.FE.ZS?contextual=region&end=2019&locations=IN-NP-
ID-VN-KH&start=1990&view=chart, last accessed 04:50 PM, 05 th July 2021.
5 Basu, Bharati & Famoye, Felix. (2004). Domestic violence against women, and their economic dependence: A
count data analysis. Review of Political Economy. 16. 457-472. 10.1080/0953825042000256685.
6 Constitution Of India, 1950, Article 15
7 Constitution Of India, 1950, Article 14
8 Constitution Of India, 1950, Article 16
9 Constitution Of India, 1950, Article 39 (a)
10 Constitution Of India, 1950, Article 39 (d)
11 Constitution Of India, 1950, Article 39 (e)
12 Constitution Of India, 1950, Article 41
13 Constitution Of India, 1950, Article 42
14 Constitution Of India, 1950, Article 46
15 Act 52 of 1973 (w.e.f. 1-3-1975
16 Act 61 of 1988 (w.e.f. 10-1-1989)
17 Act 29 of 1995, S. 2 (w.e.f. 1-2-1996).
18 https://archive.org/details/in.gazette.e.1961.702/page/n3/mode/2up
19 Maternity Benefit Act, 1961, Section 5 (1)
20 Subs. by Act 61 of 1988 (w.e.f. 10-1-1989)
21 Act 15 of 2008, S. 2 (w.e.f. 15-4-2008)
22 Maternity Benefit (Amendment) Act, 2017, Act 6 of 2017, S. 3(A)(i)
23 Maternity Benefit (Amendment) Act, 2017, Act 6 of 2017, S. 3(ba)
24 Maternity Benefit (Amendment) Act, 2017, Act 6 of 2017, S. 11 A
25 Maternity Benefit (Amendment) Act, 2017, Act 6 of 2017, Second proviso to S. 5
26 Labour statistics on women, https://ilostat.ilo.org/topics/women/