Pregnancy, largely considered to be a women-centric concept, is a period which most women go through, irrespective of whether they are working or non-working individuals. Working women, during their pregnancy have been historically expected to multi-task and are saddled with taking care of their child, their families and themselves, while meeting work expectations.
It was keeping in mind such concerns and for the welfare of the female population, that the first Maternity Benefit Act was passed in India in 1929, with the staunch support of Dr. B.R. Ambedkar in the Bombay Legislature. This law was aimed for women workers in factories – entitling them to four weeks of maternity leave immediately before the delivery, and four weeks subsequently (a total of eight weeks). [1] The maternity benefit laws, which were the first ever attempt to bring some relief to pregnant working women, typically stated that maternity leave with pay for an eight-week period should be given to a woman. The next province in India to introduce the Maternity Benefit Act was Madras in 1934 – with three weeks prior to confinement, and four weeks subsequent.[2]
Inspired by the developments of these two provinces and realizing the need for such welfare legislation, all state laws pertaining to this issue were repealed and a common Maternity Benefit Act came into existence in 1961.
THE ACT OF 1961
The Maternity Benefit Act 1961 was and still is of huge importance to all working females. It ensures that women aren’t discriminated against on the basis of pregnancy or laid off/downsized from their jobs. It seeks to protect the economic interests and well-being during the employment of pregnant mothers. A gist of its most prominent features is as follows:
The Act specifically lays down that it covers women working in ‘mine’, ‘factory’, ‘plantation’ and an establishment where performances are held, acrobatics are performed, equestrians are exhibited etc. [3]
- Section 4 of the Maternity Benefit Act prescribes that woman should not be employed after 6-weeks of her miscarriage or delivery and should not be made to do any physically strenuous work by her employer during the 6-week period [if the employer employs such women unknowingly] or the month preceding her delivery.
- Sections 5 and 6 of the Act confer the women with monetary rights. They state that every woman should be entitled to her maternity benefit in the form of current wages existing at that time since the time she absents herself from her work prior to her delivery and after 6-weeks of her delivery. However, the woman in order to claim the maternity benefit from her proprietor should have worked in his/her establishment, plantation, or mine for at least 160 days prior to the 12 months just before her delivery. The woman can also serve a notice to her proprietor seeking from him the maternity benefits entitled to
her. However, even if she fails to serve a notice her entitlement over her maternity benefits do not cease to exist.
- Sections 9 and 10 of the Act discuss the various leaves that pregnant women are entitled to. It prescribes that a woman is entitled to a leave of 6-weeks with the current wage post her miscarriage. Similarly, if the woman is in ill-health due to her delivery, miscarriage, pregnancy, or premature birth of the baby, she will be entitled to a maximum period of one-month extra leave with pay over and above the already prescribed duration of leave in Section 5 & 6 of the Act.
- Section 11 lays down yet another important aspect for women. It directs the employers to give two extra breaks to a woman post-delivery for nursing her baby until the baby attains the age of 15 months. In order to observe the correct fulfilment of Section 11, Section 13 ensures that the woman’s pay should not be deducted if she utilizes the nursing breaks.
LATEST AMENDMENT 2017
With the change in times, the Maternity Act, 1961 too demanded an overhaul and thus the Amendment of 2017 was introduced to bring the necessary updates. This amendment introduced a few major changes to the Act which have a deep bearing on the well-being of the women-
- Firstly, it increased the age of maternity leave from 12 weeks to 26 weeks, but this provision is exclusively available to women till they have two kids. Women who already have two surviving children and are on their third pregnancy are not eligible for this 26-week benefit and can only avail up to 12 weeks of maternity leave benefit. Out of this 12 week-period, a pregnant lady cannot consume more than 6 weeks of her leave prior to her delivery.[4]
- Secondly, it allows a donor/organic mother [a female who donates her egg to be utilized for fertilization and to be embedded in some other lady] and a woman who adopts and embraces a child under 3 months, to be eligible for the benefit of a 12-week maternity leave.[5]
- Thirdly, the amendment recognizes the importance of a crèche for the new mothers. It directs that every organization with 50 or more employees is required to have an area within the premises designated as a crèche. Women could utilize this facility for their babies while they are young and are also allowed to visit them. However, there is a maximum cap of 4 visits in a day which includes one general break provided to every employee. [6]
- Lastly, the amendment also provides for a circumstance wherein both the employer and the female employee can reach a mutual decision of working from home. In this case, the woman post her 26-week maternity leave period can utilize this arrangement if her employer permits and via telecommuting complete her tasks and obligations. This is a completely discretionary clause. [7]
CHARTING IMPORTANT PRECEDENTS
The Maternity Benefit Act, since its promulgation, has witnessed many unique cases. The rulings of the High Courts and the Supreme Court have also widened the scope and impact of this Act, much to the benefit of the pregnant working women. Following cases of the High Courts and the Supreme Court have given a new meaning to the Maternity Benefit Act.
In Municipal Corporation of Delhi v. Female workers (Muster roll) & Anr., (1998), the petitioner contended that women working on temporary basis like daily-wage workers, muster rolls etc. cannot be given the privilege to avail the maternity benefits enlisted under the Maternity Benefit Act, 1961. Moreover, they also stated that the provisions of this Act could only be applied to women working in ‘industries’ and not municipal corporations. However, the Supreme Court in this case held that according to the DPSP’s a woman in her last months of pregnancy cannot be forced to undertake strenuous labour and thus, the provisions of Maternity Benefit Act will apply to all the women workers, irrespective of them being regular employees or not. It was also proved in the case that Municipal Corporation comes under the purview of ‘industries’ and thus it cannot exempt its obligations under this Act.
In B Shah v. Presiding Officer, Labour Court, Coimbatore & Ors. (1977), the Supreme Court dealt with yet another important aspect pertaining to paid maternity leaves. The respondent was working in an establishment and was given her payment for the time during her pregnancy leave. But her employer deducted the payment of twelve Sundays from her overall payment stating that Sundays are non-working days and no payment could be made for wage-less holidays. The SC held that the payment of wages during the maternity leaves taken by the women worker should be read in the light of Article 42 of the Constitution. Hence, the main reason behind providing them with wages even during their maternity leaves is not just because they exist, but also to help them live decent and fulfilling lives. The intention behind the payment of maternity leaves is to enable and empower the expecting mother to look after themself and the requirements of the new born baby. This cannot happen without a decent amount of earnings and hence, the employer was directed to clear the monetary arrears of the Sundays.
In Air India v. Nergesh Meerza & Ors. (1981), some provisions under Indian Airlines Corporation Act and Air India Corporation Act were extremely unethical and discriminating. The provision stated that the retirement age of Air Hostesses forming the part of cabin crew will be fixed according to their pregnancy. Whenever the air hostesses will be pregnant for the first time, they will be considered as retired. The SC in this case held this provision to be ‘grossly unethical’ and there was an entrenched ‘utter selfishness’. If such a provision is practiced then it will forbid the women to bear children in the fear of losing their employment, a highly discriminatory outcome for women. The court further stated that pregnancy is a natural consequence of a wedlock and should not be considered as a disability and thus, should not be a ground for the retirement of Air hostesses.
In Smt. Urmila Masih v. State of Uttarakhand & Anr, (2015), the petitioner was a government employee and had applied for a 5-month maternity leave. She was denied the leave on the basis of ‘Proviso II of Rule 153 of the Financial Handbook of U.P. Fundamental Rules’. This has been adopted by the Uttarakhand government as well. This proviso denied the benefit of maternity leave to women who had two or more children alive. The Uttarakhand HC held that this provision was not in consonance with Article 42 of the constitution and Section 27 of the Maternity Benefit Act, 1961. The court then held this provision to be ultra vires and struck it down declaring it to be unconstitutional and directed the concerned authorities to grant the petitioner her entitlement over maternity leaves. A similar decision was held in Ruksana v. State of Haryana & Ors (2011) by the Punjab High Court.
CHARTING THE CURRENT STATUS
In Esha Mazumdar v. Union of India and Ors. (2021), the Supreme Court was presented with a matter concerning virtual hearings for pregnant/new mothers who are practicing as advocates in the comfort of their home. The contention of the petitioner was that pregnant/new mothers should be presented with the option to attend the court’s hearings from their homes for their entire pregnancy and at least for 26 weeks post pregnancy. The bench comprising Justices L. N. Rao and B. R. Gavai, was not very keen on this idea as they took into consideration the wide ambit of discretion that will be available with the beneficiaries and how some other category of persons would also eventually come up and claim such similar reliefs from the court resulting in a chaotic situation. The bench contended that such cases are to be treated as an exception but if these exceptions started being considered, there would be many other advocates coming forth with co-morbidities, old age etc. who will demand the same on the grounds of the sensitive nature of their health. Further, if this happens then there will be no end to such exceptions and
people from other professions will also start demanding the same. However, the SC clubbed the petition with the other petitions demanding virtual hearing to be made into a fundamental right. The judgement is awaited.
In Saumya Tiwari v. State of U.P & Ors. (2021), the petitioner was an undergraduate student who was not able to qualify her examination due to her pregnancy. She was given a chance by the university to appear for her backlog exams but failed to appear because she was expecting her baby back then. The university barred her from any more opportunities. The Allahabad High Court held that the right to maternity leaves is not only limited to the women workers but should be extended to imbibe every pregnant woman whether she is working or a student. Moreover, the right to maternity leaves is a fundamental right. The court further directed the All India Council for Technical Education [AICTE] to scrap the discriminatory provisions regarding maternity leaves and make them uniform and accessible and an order was also passed in favour of the student allowing her to re-appear for her examinations.
In Hamsaanandani Nanduri v. Union of India (2021), the petitioner in this case challenged before the Supreme Court the constitutional validity of Section 5(4) of the Maternity Benefit Act which only bestows 12 weeks of maternity leave to women who adopt a baby below three months of age. The petitioner contends that this section is violative to the spirit of both the Maternity Benefit Act, 1961 as well as the Juvenile Justice Care and Protection of Children Act, 2015 The provision is not mindful and doesn’t take into consideration the time it takes to adopt a child. The provision also discriminates against adopting mothers and bears a neglecting attitude towards children who are above three months of age and are abandoned, orphaned or surrendered for adoption purposes. The women who want to adopt such children have no respite and privileges under the Maternity Benefit Act, 1961. The Supreme Court concurred with this point of view of the petitioner and accordingly issued a notice to the Union.
In Rasitha C.H. v. State of Kerala & Anr. (2018) and Rakhi P.V. & Ors v. State of Kerala & Anr. (2018), the Kerala High Court dealt with a contention that contractual or ad-hoc female employees cannot be granted the benefit of paid maternity leaves. The HC ruled that the type of employment of the female employee forms no basis of consideration for granting them the paid maternity leaves and such leaves should be granted irrespective of their tenure in the establishment.
| Sr.no | RELEVANT LAW | MATERNITY BENEFITS | AMBIT |
|---|---|---|---|
| 1 | All India Services (Leave) Rules, 1955 | For women: 24 weeks only if less than two surviving children. Child Care Leaves [CCL] for two surviving children for 730 days, to be utilised till they attain the age of 18 years. [with salary]. Mothers who adopt are also eligible for leaves. | ● IAS ● IPS ● IFS ● The Indian Service of Engineers ● The Indian Medical and Health Service |
| 2 | Central Civil Services (Leaves) Rules, 1972 | For women: 180 days for women who have less than two surviving children . 60 days for women who adopt and with less than two surviving children. [to be utilised within a year] Child Care Leaves[CCL] for two surviving children for 730 days, to be utilised till they attain the age of 18 years [with salary]. | Government employees in Civil Services and appointed in such posts dealing with the Union affairs. |
| 3 | Employees State Insurance Act, 1948 | For Women: 12 weeks with salary. | ● Other than seasonal factories, all factories are within its purview. ● Employees with salaries equal to or less than 15,000. ● Establishments notified by the central or state governments. |
| 4 | The Building and Construction workers (Regulation of Employment and Conditions of Service) Act, 1996 | For Women: Establishment of state welfare boards for dispersing the maternal benefits to women. | An establishment which puts to work ten or more building workers at construction sites or any buildings. |
| 5 | Unorganised Workers’ Social Security Act, 2008 | For women: It expressly leaves it to the central government to draft | Establishment employing less than 10 workers and such policies and schemes that will provide women with Maternity Benefits. engaged in selling and buying of services and goods. |
| 6 | The Factories Act, 1948 | For women: Maternity leaves for maximum 12 weeks [with wages] | ‘Workers’ working in factories [as defined under the Act]. |
| 7 | Working Journalists (Conditions of Service) and Miscellaneous Provisions Rules, 1957 | For women: Maternity leave of 3 months [with salary] | Women journalists working in newspapers and have worked there for at least a year. |
The table above clearly depicts how maternity benefits are very diverse and distinct under various statutes. It shows how women are categorised into different classes and each such class is governed by a different set of statutes altogether. Such discrimination in the grant of maternity benefits is violative of Article 21 & Article 14 of the Indian Constitution. These Articles form the fundamental rights of a person and cannot be violated under any circumstances. In many instances which mandate the formation of maternity welfare boards, no concrete step has been taken and the women are at the suffering end owing to such insolence. Moreover, the clash between these plethora of maternity provisions and the Maternity Benefit Act, 1961 is also creating chaos as women do not know where their ultimate maternity rights lie and under which statute they should claim them. Such a chaotic situation often provides loopholes for the employer to assert their arbitrariness and put the pregnant women at a disadvantageous position or more so fire them altogether if they refuse to abide by the law that their employers prefer. Such a state of affairs, poses a large gap in the legislation and allows a wide scope to the legislature as well as the judiciary, to contemplate on the same and come forth with amendments to address the same.
[1] Section 5(2) of the Bombay Maternity Benefit Act, 1929.
[2] Section 5(2) of the Madras Maternity Benefit Act, 1934.
[3] Section 2 of the Maternity Benefit Act, 1961.
[4] Point 3(A)(i) of the Maternity Benefit (Amendment) Act, 2017.
[5] Point 3(4) of The Maternity Benefit (Amendment) Act, 2017.
[6] Point 4 of the Maternity Benefit (Amendment) Act, 2017.
[7] Point 3(5) of the Maternity Benefit (Amendment) Act, 2017.
