Maternity Benefits in India

Introduction:

The progressive nature of society has led to an increase in the employment of women in the corporate world. This had made it a requirement to make laws so as to ensure that the rights of women are not violated due to pregnancy, menstruation, menopause, the responsibility of children. Making a woman quit her job for these reasons or making her choose among the two is unfair but the patriarchal nature of society does not always provide her a right to make these decisions by herself.

The Maternity Act, 1961 and The Employees’ State Insurance Act, 1948

Maternity Benefits are additional rights given to women to secure them and encourage them to work in case they are pregnant, had a miscarriage, or have an infant child that requires constant care and attention.

The Maternity Act, 1961 was passed for this purpose. The act provides various rights to women working in shops or establishments employing more than 10 people. The woman may be employed either directly-indirectly or as a full-time employee or on a contractual basis. The Employees’ State Insurance Act, 1948 also provides that an insured woman, working in a factory with more than 10 workers, is entitled to a periodical payment which is payable in the following cases: –

• Confinement,
• Miscarriage,
• Sickness relating to pregnancy, or
• Premature childbirth.

The Maternity Act, 1961 provides many rights to women in the form of maternity benefits and it is the responsibility of the employer to provide a written notice to the woman at the time of her appointment, mentioning her maternity benefits.

1. Section 4 of the Act prohibits the employment of or making a woman work during the following periods:
   • 6 weeks immediately after the day of her delivery or miscarriage.
   • No Woman shall or be made to, by her employer, indulge in any arduous work, includes long-standing hours, or any other work that is likely to have a negative effect on her pregnancy or in the normal development of the baby or fetus or could lead to a miscarriage or cause health issues for her, for a month immediately preceding 6 weeks of her expected delivery date.
   • Any period for which she works within the six weeks immediately preceding her expected delivery date.
2. The pregnant woman is also entitled to be paid the following in Maternity benefits under section 6 of the act:
   • It is the duty of the employer to pay her average daily wage for her maternity leave in the time preceding her delivery day, the day of her delivery, and the period following her delivery.
   • Maternity benefits can only be claimed by a woman who has worked in the establishment for at least 80 days in 12 months immediately preceding her expected date of delivery. Although this provision does not apply to a woman who has immigrated to the state of Assam and was pregnant while immigrating.
   • Maternity benefits can only be claimed for a maximum period of 12 weeks out of which only six weeks can proceed her expected delivery date and in case she dies during this time it can be claimed till the date of her death. But in case the woman dies during childbirth and the child is alive then the Maternity Benefit has to be paid for the entire period or if the child also dies during this period but after the mother then till the date of the child’s death.
3. Section 7 of this act states that a woman who wants to claim Maternity benefits or any other similar benefits has to provide a notice of the same to her employer in writing and also mention that during this time she will not be working for any other establishment. She can also direct the employer to pay her Maternity benefits to any other person on her behalf by the same notice. The woman also has to mention her expected date of delivery and the period for which she will be absent from work because of maternity leave.
4. Section 8 provides a medical bonus to the woman from her employer which will include Rs. 250, if no pre-natal care is provided, along with post-natal care which will be provided free of cost.
5. In case of miscarriage Maternity Benefit is provided in the same manner as delivery for six weeks immediately following the miscarriage, provided that the woman has to shall proof of such miscarriage. This is given in section 9 of the act.
6. Section 10 mentions that in addition to leave provided under section 6 or section 9, whichever might be the case, may claim an additional leave for one month in case she is suffering from an illness which is a result of pregnancy, delivery, miscarriage, or premature birth of a child but she has to provide proof of the same.
7. After the delivery when the woman returns to her official duty, she will be provided with certain benefits under section 11 of the act.
   • Firstly, intervals to rest,
   • Secondly, two nurturing breaks until the child attains the age of 15 months.
8. Section 12 and 13 also provide that a woman cannot be dismissed or discharged from her duty during her pregnancy on maternity leave except in the case of gross misconduct. The terms of employment can also not be changed during this period, neither her wages can be deducted because of her absence during maternity leave or nurturing breaks.

However, this act was amended in 2017 to further add some more benefits to women.

The Maternity (Amendment) Act, 2017

The act was amended and was made applicable to all government and private establishments including mines, factories, plantations, or any other establishment, employing more than 10 workers.

• The paid maternity leave was extended from 12 weeks to 26 weeks out which a maximum of 8 weeks could be claimed before delivery and the rest after the delivery of the child.
• The maternity leave was extended to mothers who have adopted a child below the age of 3 months. The leave is to be claimed from the date of adoption. The same provision was made for commissioning mothers that have used their eggs to create an embryo by planting it in any other woman.
• It was also provided that creches shall also be arranged in the workplace by the employer. Although creches are compulsory only in establishments with more than 50 employees. A woman can visit a creche 4 times a day including the rest intervals.
• Depending on the nature of work and terms of the employer work from home facilities can also be availed by a woman after the end of 26 weeks of maternity leave.

Constitutional Validity of Maternity Benefits

 Maternity benefits are provided to cater to the working conditions of women and give them equal opportunity to work without curtailing their life and personal liberty. Several constitutional provisions protect the rights of women. The Fundamental Rights mentioned in Article 14 provides equality and Article 15 provides for equal opportunity to work. If these benefits are not made for women, they might suffer discrimination in the workplace and might also lose their jobs. If they decide to work, they might have consequences for their health along with their baby. A newborn child also requires constant care and attention and, in such cases, it will become impossible for women to continue their work.

The Directive Principles of State Policy given in Article 42 states that the government shall make laws to ensure just and humane conditions of work for all and maternity benefits are a part of it. Article 46 also provides that the state has to provide favorable conditions for working women.

Judicial Provisions for maternity leave and Case Laws

1. In the case of Municipal Corporation of Delhi vs. Female Workers¹, it was held that compelling a woman to do heavy work during her advanced pregnancy stage is unlawful as it can be dangerous for both the fetus and the mother.
2. In the case of Air India vs. Nergesh Meerza², the court held that the termination of services of a woman on her getting pregnant was discriminatory and therefore violative of Articles 14, 15, and 16 of the Constitution of India.
3. In the case of Shah vs. Presiding Officer, Labour Court, Coimbatore, and others³, it was put forth by the court that maternity benefits are provided to women to preserve her health so that she can play her productive and reproductive roles efficiently.
4. In the case of Dr. Rachna Chaurasiya vs. State of U.P. and others⁴, the Allahabad High Court held that the nature of employment is irrelevant while granting maternity leave to a pregnant woman.

Conclusion

Giving birth to a child is not only a significant period in a woman’s life but is also highly crucial. It can bring several health issues to the women as well as the fetus. Therefore, it is only just and reasonable to provide them with special laws so as to ensure that the woman and the child both are protected and nurtured properly. Not giving these benefits to female workers can bring a lot of problems in their professional lives. They could lose their jobs. Although such laws are also criticized as on the one hand they provide benefits to women and encourages them to work but on the other hand, it discourages the employers as they have to provide a lot of facilities to women such as creches. They also have to grant them paid leave of 6 months where their productivity is nil.