The Maternity Benefits Act1961 Full Detail

The Maternity Benefits Act1961 Full Detail

The Maternity Benefits Act1961

By Aini borah advocate

the maternity benefit act 1961
the maternity benefit act 1961

INTRODUCTION

The 44th Session of Indian Labour Conference (ILC), has recommended for enhancing maternity leave under Maternity Benefit Act, 1961 from existing twelve weeks to twenty-four weeks. This recommendation has been reiterated during 45th and 46th Session of ILC. The Ministry of Women and Child Development and other stakeholders has also requested to enhance maternity benefit under the Maternity Benefit Act, 1961.

Based on the recommendations of ILC and requests from the various quarters and the deliberations during the Tripartite Consultations with stakeholders, it has been decided to amend the Maternity Benefit Act, 1961.

Object

The Maternity Benefit Act, 1961, protects the employment of women during the time of maternity and entitles them to a full paid absence from work to take care for the child. The amendments in 2017 seeks to increase maternity leave period to 26 weeks in all establishments, including private sector.

 Applicability

The Act was applicable to all establishments which include factories, mines, plantations, Government establishments, shops and establishments under the relevant applicable legislation, or any other establishment as may be notified by the Central Government.

Eligibility

As per the Act, to be eligible for maternity benefit, a woman must have been working as an employee in an establishment for a period of at least 80 days within the past 12 months. Payment during the leave period is based on the average daily wage for the period of actual absence.

MATERNITY BENEFIT ACT, 1961

The Object of the Act is to protect the dignity of motherhood and the dignity of a new person’s birth by providing for the full and healthy maintenance of the woman and her child at this important time when she is not working.

Benefits Under The Act:

Cash Benefits

  • Leave with average pay for six weeks before the delivery
  • Leave with average pay for six weeks after the delivery
  • A medical bonus if the employer does not provide free medical care to the woman
  • An additional leave with pay up to one month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage or premature birth
  • In case of miscarriage, six weeks leave with average pay from the date of miscarriage.

Non Cash Benefits/Privilege

  • Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it
  • Two nursing breaks in the course of her daily work until the child is 15 months old
  • No discharge or dismissal while she is on maternity leave
  • No change to her disadvantage in any of the conditions of her employment while on maternity leave
  • Pregnant women discharged or dismissed may still claim maternity benefit from the employer.

Under the Maternity Benefits Act, 1961 the condition levied is that the female employee should have served the institution for a minimum period of 80 days in 12 months preceding the date of expected delivery. Also, the Act has undergone regular amendments with the recent one being in 2008. Here, the minimum medical bonus in case of inability of employer to provide free medical care to pregnant women employee was raised from Rs 25 to Rs.1000 extending to Rs. 20000.

The Act provides for 12 weeks of paid leave as maternity leave and 6 weeks in case of miscarriage or termination of pregnancy. In addition to the provisions for leave and cash benefits, the Act also makes provisions for matters like light work for pregnant women 10 weeks prior to her delivery, nursing breaks during daily work till the child attends age of 15 months, etc.

The Act serves as a protective umbrella as it restricts termination of service of a pregnant woman employee except on grounds of misconduct. Moreover, it imposes punishment for a period of minimum three months or fine extending to Rs. 5000 on the employer, in the event of any failure to provide maternity benefits to female employees.

 

 

ISSUES RAISED BEFORE THE SUPREME COURT WITH REFERENCE TO THE MATERNITY BENEFIT ACT, 1961 AND JUDICIAL RESPONSE

Municipal Corporation of Delhi v. Female Workers: In this case Union of Female Workers who were not on regular rolls, but were treated as temporary workers and employed on Muster roll, claimed that they should also get maternity benefit like regular workers. The court held that the provisions of the Act would indicate that they are wholly in consonance with the Directive Principles of State Policy, as set out in Article 39 and in other Articles, especially Article 42. A woman employee, at the time of advanced pregnancy cannot be compelled to undertake hard labour as it would be detrimental to her health and also to the health of the fetus. It is for this reason that it is provided in the Act that she would be entitled to maternity leave for certain periods prior to and after delivery.

Shah vs. Presiding Officer, Labour Court, Coimbatore and others :The question before the Supreme Court was whether in calculating the maternity benefit for the period covered by Section 5 Sundays being wage less holiday should be excluded. Issues Raised before the Courts with Reference to Maternity Benefit Act, 1961.

  • The Apex Court in holding that Sundays must also be included, applied the beneficial rule of construction in favor of the woman worker and observed that the benefit conferred by the Act read in the light of the Article 42 of the Constitution was intended to enable the woman worker not only to subsist but also to make up her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her previous efficiency and output.
  • During this period she not only cannot work for her living but needs extra income for her medical expenses. In order to enable the woman worker to subsist during this period and to preserve her health, the law makes a provision for maternity benefit so that the woman can play her productive and reproductive roles efficiently.
  • Performance of the biological role of child bearing necessarily involves withdrawal of a woman from the workforce for some period.

Maternity Benefit Act,1961

FORM E: Notice under Section 6 of the Maternity Benefit Act, 1961 for Proceeding on Maternity Leave

[Rule 5(1)]

To

___________________ (name of mine or circus)

I _________ (name of woman) wife/ daughter of ___________ employed as _______ at ______ (name of mine or circus), hereby give notice that I expect to be confined within six weeks next following from the date of this notice/have given birth to a child on _____ (date) and shall be absent from work from _______ (date). I shall not work in any establishment during the period for which I receive maternity benefit.

  1. For the purpose of section 7, I hereby nominate ______ (here enter name and address of the nominee) to receive maternity benefit and/ or any other amount due to me under the Act in case of my death.

Signature of thumb impression of woman

Date _____________

Signature of an Attester in case the woman is not able to sign and affix thumb impression.

Maternity Benefit Act,1961

  1. Notice of claim for maternity benefit and payment thereof

(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.

(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.

(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.

[(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.]

(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.

(6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.

The Maternity (Amendment) Bill 2017, an amendment to the Maternity Benefit Act, 1961, was passed in Rajya Sabha on 11 August 2016, in Lok Sabha on 9 March 2017, and received an assent from President of India on 27 March 2017. The Maternity Benefit Act, 1961 protects the employment of women during the time of her maternity and entitles her of a ‘maternity benefit’ – i.e. full paid absence from work – to take care for her child. The act is applicable to all establishments employing 10 or more employees.

The provisions of this act are effective from 1 April 2017. However, provision on creche facility (Section 11A) shall be effective from 1 July 2017. The Code on Social Security, 2020 consolidated the provisions of this and several other acts, repealing the acts in the process.

 

The Maternity Benefit Act, 1961, protects the employment of women during the time of maternity and entitles them to a full paid absence from work to take care for the child. The amendments in 2017 seeks to increase maternity leave period to 26 weeks in all establishments, including private sector.

Key amendments

  • Increased Paid Maternity Leave:

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 expected date of delivery).

  • Maternity leave for adoptive and commissioning mothers:

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 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 weeks’ 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. 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.

 

Explanation: For the purpose of this sub-section, the average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, [the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest].

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity  benefit, for a period of not less than [eighty days] in the twelve months immediately preceding the date of her expected delivery:

PROVIDED that the qualifying period of [eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.

Explanation : For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, [the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

Case law

Anshu Rani v. State of U.P. And 2 Others
WRIT – A No. – 3486 of 2019

Facts of the case

  • Petitioner was initially appointed on the post of Anudeshak / instructor teacher. on 20.07.2013.
  • an application dated 26.9.2018 was submitted by the petitioner
  • before the Block Education Officer as well as the District Basic Education Officer, Bijnor to grant her maternity leave from 1.10.2018 to 31.3.2019.
  • But, the District Basic Education Officer, Bijnor granted maternity leave to the petitioner only for 90 days, i.e., 1.10.2018 to 29.12.2018 with honorarium. The request was made by the petitioner to grant her maternity leave for 180 days, according to Maternity Benefit Act, 1961, but no response from respondent. Thereby this Writ petition was filed.
  • A counter affidavit was filed contended that the maternity leave was rightly granted only for a period of 90 days since it is not possible in law to grant maternity leave to the petitioner for a period of 180 days in view of the Government Orders dated 20.11.2017 and
  • 3.1.2018.

Court held that

 

Court besides referring to Article 14 of the Indian Constitution (Right to equality), place reliance on the decision of the Supreme Court  in Municipal Corporation of Delhi Vs. Female Workers (Muster Roll) and another 2000 (3) SCC 224, wherein the Supreme Court had held that 

 

A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, their  avocation and the place where they work; they must be provided all the facilities to which they are entitled. To become a mother is the most natural phenomena in the life of a woman. Whatever is needed to facilitate the birth of child to a woman who is in service, the employer has to be considerate and sympathetic towards her and must realise the physical difficulties which a working woman would face in per forming her duties at the work place while carrying a baby in the womb or while rearing up the child after birth. The Maternity Benefit Act, 1961 aims to provide all these facilities to a working woman in a dignified manner so that she may overcome the state of motherhood honourably, peaceably, undeterred by the fear of being victimised
for forced absence during the pre or post-natal period.”

“In view of the facts as narrated above, it is clear that the petitioner is entitled for maternity leave for period of six months”

In the facts and circumstances of the case, a mandamus is issued directing the respondent No.2/District Basic Education Officer, Bijnor to provide the petitioner maternity leave with honorarium with effect from 30.12.2018 to 31.3.2019.

Section 5A. Continuance of payment of maternity benefit in certain cases 

Every woman entitled to the payment of maternity benefit under this Act shall, notwithstanding the application of the Employees’ State Insurance Act, 1948 (34 of 1948), to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under section 50 of that Act.]

Section 5B. Payment of maternity benefit in certain cases 

Every woman

(a) who is employed in a factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948 (34 of 1948), apply;

(b) whose wages (excluding remuneration for over-time work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and

(c) who fulfils the conditions specified in sub-section (2) of section 5, shall be entitled to the payment of maternity benefit under this Act.]

 

 Section 6. Notice of claim for maternity benefit and payment thereof 

(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit.

(2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery.

(3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.

[(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.]

(5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child. (6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.

 Section 7. Payment of maternity benefit in case of death of a woman 

If a woman entitled to maternity benefit or any other amount under this Act, dies before receiving such maternity benefit or amount, or where the employer is liable for maternity benefit under the second proviso to sub-section (3) of section 5, the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 6 and in case there is no such nominee, to her legal representative.

Section 8. Payment of medical bonus 

Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus, of Rs. 1000/- , if no pre-natal confinement and post-natal care is provided for by the employer free of charge.

The Central Government may from time to time, by notification in the Official Gazette, increase the amount of medical bonus subject to the maximum of Rs. 20,000/-.

Section 9. Leave for miscarriage, etc. 

In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy.]

Section 9A. Leave with wages for tubectomy operation 

In case of tubectomy operation, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit for a period of two weeks immediately following the day of her tubectomy operation.]

Section 10. Leave for illness arising out of pregnancy, delivery, premature birth of child, [miscarriage, medical termination of pregnancy or tubectomy operation]

A woman suffering from illness arising out of pregnancy, delivery, premature birth of child, [miscarriage, medical termination of pregnancy or tubectomy operation] shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.

Section 11. Nursing breaks 

Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months.

 

CONCLUSION

After analyzing various provisions of the 1961 Act and related cases it can be concluded that Maternity Benefit Act, 1961 is a boon for the working women in the sense that they don’t have job insecurity during their maternity period. But there are certain shortcomings of the Act which needs to be looked upon. Firstly, the duration of leave must be extended in order to allow a mother to fully recover and recuperate as well as efficiently nurse her new born child. Within this, the duration of post natal period must be extended keeping in mind factors like rise in number of late marriages, cesarean births, nuclear families and increasing urbanization. In the 44th Indian Labour Conference, held in February, 2012, it has been recommended that Maternity Leave under the Maternity Benefit Act be increased from the present level of 12 Weeks to 24 Weeks.

Secondly, The MBA does not comply with international standards and there are huge gaps in its implementation as the entire responsibility of the Act rests with the employer. Placing the entire burden of providing maternity benefit on the employer is akin to giving him an incentive to not provide any benefit at all. Thus, the cost of maternity protection should be shared amongst different agencies through some form of social insurance scheme or general taxation.

Thirdly, the responsibility of child care is often singularly put upon women. This reinforces patriarchal notions and stereotypes and also enhances the discrimination they face from employers. In order to reduce these factors, the Act should also make a provision for paternity leave and follow a more egalitarian approach. Also, protection should be available to persons who adopt children.

 

This Post Has 3 Comments

  1. ClarkTup

    Thank you mam

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