INTRODUCTION

A maternity benefit is one that every woman shall be entitled to, and her employer shall be
liable for, the payment of maternity benefit, which is the amount payable to her at the rate of
the average daily wage for the period of her actual absence. Maternity Benefits should aim to
regulate employment of women employees in certain establishments for certain periods
before and after childbirth and provides for maternity and certain other benefits.

Post Maternity, women work participation rate is negatively affected in labour market. It is
important to recognize that women participation in labour market has significantly increased
in recent years, particularly in urban areas. Further, most of the increase in women
participation in labour market is contributed by young women in urban areas. Since India is
committed to creating a gender friendly labour market environment, there is increasing
realization to provide a conducive working environment.

Looking at the large number of women employment in broad occupational categories, it was
but natural to protect and safeguard their health in relation to Maternity and the children.

The fundamental purpose for providing maternity benefits is to preserve the self-respect for
motherliness, protect the health of women, complete safety of the child etc. Due to the
increasing number of women employees in the government and private sector, it became
necessary to grant maternity leave and other maternity allowances to working women.

The objective of maternity benefits is to protect the dignity of “Motherhood” by providing the
complete & health care to the women & her child when she is not able to perform her duty
due to her health condition. There is need for maternity benefits so that a woman is to be able
to give quality time to her child without having to worry about whether she will lose her job
and her source of income.
 OBJECT OF THE ACT
With the object of providing maternity leave and benefit to women employee the Maternity
Benefit Bill was passed by both the Houses of Parliament and subsequently it received the
assent of President on 12th December, 1961 to become an Act under short title and
numbers “THE MATERNITY BENEFIT ACT, 1961 (53 OF 1961)”.

LIST OF AMENDING ACTS

1. The Central Labour Laws (Extension to Jammu and Kashmir) Act, 1970 (51 of 1970).

2. The Maternity Benefit (Amendment) Act, 1972 (21 of 1972).

3. The Maternity Benefit (Amendment) Act, 1973 (52 of 1973).

4. The Maternity Benefit (Amendment) Act, 1976 (53 of 1976).

5. The Maternity Benefit (Amendment) Act, 1988 (61 of 1988).

6. The Maternity Benefit (Amendment) Act, 1995 (29 of 1995)

Definations - "woman" means a woman employed, whether directly or

through any agency, for wages in any establishment.

[(ha) "medical termination of pregnancy" means the termination of

pregnancy permissible under
the provisions of Medical Termination of Pregnancy Act, 1971.];
(j) "miscarriage" means expulsion of the contents of a pregnant uterus at
any period prior to or during the twenty-sixth week of pregnancy but does
not include any miscarriage, the causing of which is punishable under the
Indian Penal Code (45 of 1860);
(b) "child" includes a still-born child;
(c) "delivery" means the birth of a child;
"maternity benefit" means the payment referred to in sub-section (1) of section 5;

REASONS FOR NEED OF MATERNITY BENEFITS

Economic dependence of women is what gives rise to their subordination in society

today. Hence to remove such subordination and to lay the foundation of equality
women too must be made economically independent and must take an active role in
all sectors of business today. To support such initiative the Government must
provide some conditions which are suitable for the needs of women.

Among the problems faced by women in the economic sphere of life discrimination
resulting from their biological role in nature of childbearing is one. To curb such
problem and protect the economic rights of women there is need for maternity
benefits for a female employee. Women are entitled to these benefits as the child
bearing process is intensely painful and can cause bodily damage. This may severely
affect the future work of the woman as an employee and decrease her productivity
so there is a need for maternity benefits for the women worker.

To safeguard working women and their rights to remain self-reliant and economically
independent, maternity benefits are required. A just social order can be achieved only
when inequalities are obliterated and everyone is provided what, is legally due. When
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 realize the physical difficulties which a working
woman would face in performing her duties at the work place while carrying a baby
in the womb or while rearing up the child after birth.

Historically, maternity has been treated as a state of disability in women workers

from undertaking any work during the few weeks immediately preceding and
following child birth. With the emergence of the system of wage labour in the
industrial undertakings, many employers tended to terminate the services of the
women workers when they found that maternity interfered with the performance of
normal duties by women workers. Many women workers, therefore, had to go on
leave without pay during this period in order to retain their employment.

Many others had to bear a heavy strain to keep their efficiency during the periods of
pregnancy, which was injurious to the health of both, the mother and the child. To
remove this hardship of the women workers, the concept of maternity benefit is
needed in order to enable the women workers to carry on the social function of child;
bearing and rearing without undue strain on their health and loss of wages.
The vast majority of women want to have children at some time in their lives. The
economic arrangements which were there earlier required them to compromise their
career and family goals. Hence, although women have taken enormous strides
toward gender equity at work, as long as traditional gender ideologies and
assumptions (i.e., sex-typed stereotypes, roles, and status beliefs) linger, they won’t
have been able to continue in the business unless there is maternity benefits
provision.

CASE STUDY

AIR INDIA V. NERGESH MEERZA 

Facts: Under the relevant regulation of Air India Corporation (AIC) Act and Indian
Airlines Corporation (IAC) Act, there was a discrimination made between the
conditions of retirement and termination of service pertaining to air hostesses (AH)
and those of male pursers (MP) forming part of the same cabin crew and performing
similar duties. These conditions were that an AH under AIC retired from service:

(1) On attaining the age of 35 years, or

(2) On marriage, if it took place within four years of service, or

(3) On first pregnancy.

Fact in Issue: Whether this amounts to violation of Article 14 (right to equality) and

Article 15 and 16 (no discrimination on basis of gender) of the Constitution?

Held: Stating that it is settled law that article 14 strikes at arbitrariness in state

action and that the principle of reasonableness “pervades Article 14 like a brooding
omnipresence”, the court examined all the three conditions separately.

1. In respect of condition (1) the court held that the age of retirement is to be
fixed by the management after taking into account various factors such as the
nature of work, prevailing conditions, practice prevailing in other
establishment, etc. Without deciding whether 35 years is the correct age for
retirement, the court went on to strike at regulation 47. Under this regulation
the managing director (MD) had an uncontrolled and unguided discretionary
power to grant yearly extensions to the Air Hostesses till the age of 45. This
 unguided discretion vested with the MD could easily result in his treating
similarly placed Air Hostesses differently and was therefore struck down. The
result was that unless the management amended the provision, all Air
Hostesses would continue to retire at 45 years of age and the MD would be
bound to grant yearly extension as a matter of course, if the Air Hostesses
was medically fit.

2. So far as condition (2) was concerned, this condition was held to be

constitutionally valid. Having regard to the difficulties faced by both the
parties, the court could not find any constitutional infirmity in the provision
requiring the Air Hostesses to serve the corporation with complete dedication
for the first 4 years.

3. So far as condition (3) was concerned the court took strong exception to it
and held it to be “grossly unethical” and as smacking of “deep rooted sense of
utter selfishness at the cost of all human values”. Having taken the Air
Hostesses in service and after utilizing her services for 4 years, to terminate
her services if she becomes pregnant would amount to compelling her not to
have any children. The ability / capacity to continue to work after having
children is an individual matter and whether she would find it difficult to look
after the children or not is her personal matter which affects the Air
Hostesses concerned and not the airline. Pregnancy is not a disability; it is a
“natural consequence of marriage” and any distinction made on the ground of
pregnancy is extremely unreasonable and manifestly arbitrary. This condition
was held to be unconstitutional as violative of article 14 and was struck down.
4. Whether there was violation of article 15 (1) and 16 (2)?

Held: What article 15 (1) and 16 (2) prohibit is that the discrimination should not be
made only and only on the ground of gender. Discrimination on the basis of gender
coupled with other considerations is not prohibited.

MATERNITY BENEFITS AND INDIAN CONSTITUTION

The rights and privileges for the betterment of women are: right to equality in law
[Article 14], right to social equality [Article 15], right to social equality in employment
[Article 16] right to adequate means of livelihood [Article 39 (a)], right to equal pay for
equal work [Article 39 (d)], right that the health and strength of workers both men
and women are not abused [Article 39 (e)], right to just and humane conditions of
work and maternity relief [Article 42], and right to improvement in employment
opportunities and conditions of the working women [Article 46].
Article 15(3) of the Indian Constitution empowers the State to make special
provisions for women. The main object of Article 15 (3) is based on “protective
discrimination” keeping in view the weak physical position of women. The reason is
that “women’s  physical structure and the performance of maternal functions places
her at a disadvantaged position in the struggle for subsistence, and her physical well-
being becomes an object of public interest and care in order to preserve the strength
and vigor of the race.” This provision has enabled the State to make special statutory
provisions exclusively for the welfare of women.

Article 21, Right to Life and Personal Liberty is not merely a right to protect one’s
body but the guarantee under this provision contemplates a larger scope. Right to
Life means the right to lead meaningful, complete and dignified life. It does not have
restricted meaning. It is something more than surviving or animal existence. The
meaning of the word life cannot be narrowed down and it will be available not only to
every citizen of the country. Therefore, the State must guarantee to a pregnant
working woman all the facilities and assistance that she requires while protecting
her employment as well as her own and her child’s health.

The Directive Principles of State Policy contained in Part IV of the Constitution of

India, under Article 41 requires the State to make effective provision for securing the
right to work and to education and Article 42 requires that the State shall make
provision for securing just and humane conditions of work and for maternity relief.
“Since Article 42 specifically speaks of “just and humane conditions of work” and
“maternity relief”, the validity of any service rule and of an executive or administrative
action in denying maternity benefit has to be examined on the anvil of Article 42
which, though not enforceable at law, is nevertheless available for determining the
legal efficacy of the service rule and of the action complained of.”

INTERNATIONAL LABOUR ORGANIZATION STANDARDS ON

MATERNITY PROTECTION

International recognition for maternity benefit was achieved by the efforts of the
International Labour Organization (“ILO”). The core concerns of ILO have been to
ensure that women’s work does not pose risk to the health of the women and her
children and to ensure that women’s reproductive roles do not come in the way of
their economic and employment security.

Conventions on Maternity

It was during the first International Labour Conference (ILC) in 1919 that the first
Convention on Maternity protection, Convention concerning the Employment of
Women before and after Childbirth, 1919 (Convention No. 3) was adopted. This
Convention was followed by two other conventions: Convention concerning
Maternity Protection (Revised), 1952 (Convention No. 103) and Convention
concerning the revision of the Maternity Protection Convention (Convention No.183)
in 2000, which progressively expanded the scope and entitlements of Maternity
protection at work.

Convention No. 3

The 1919 Convention provided that no woman should be permitted to work in any
industrial or commercial undertaking for a period of six weeks after in any
confinement, and that she should be entitled to leave work during the six weeks
before her confinement, on production of a suitable medical certificate. During any
such period of absence the employee was to be paid benefits sufficient for the full
and healthy maintenance of herself and her child, and is, in addition, to receive free
attendance by a doctor or certified midwife. The income security is also provided
during this period. It also guaranteed nursing facilities and reinstatement in
employment after leave. The amount of benefit is to be determined by the competent
authority in each country, and the cost of the scheme is to be defrayed out of public
funds unless otherwise provided under a scheme of insurance.

Convention No. 103

The ILO Maternity Protection Convention, 1919 was revised in 1952. According to the
revised convention every woman irrespective of age, nationality and status in public
or private, industrial or commercial undertaking was required to be absent for a
period of six weeks after the child birth and allowed to be absent for a period of six
weeks prior to child birth. For such absence she was to be paid full benefits
sufficient for the full and healthy maintenance of herself and her child. These
benefits were to be paid either out of public funds or be means of a system of
insurance but the exact amount was to be determined by the competent authority in
each country. Additional benefits like free attendance by doctors and midwives, and
two nursing breaks of half an hour’s per day were provided, and no employer could
dismiss a woman for such absence.

Convention No. 183

Convention No. 183 is divided into a number of different aspects of Maternity

protection such as: Scope; Health protection; Maternity leave; Leave in case of
illness or complications; Cash and medical benefits; Employment protection and
non-discrimination etc.

This Convention should normally be implemented through laws or regulations,

although different means are used in the national practice of the member states, by
following protection, such as collective agreements and arbitration awards, etc.
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.
The penalty for contravention of an act by an employer

The section 21 of the Act, the penalty for contravention of act by

employer. If a woman having the entitlement to maternity benefits
don’t receive it. Or if the employer fails to pay her the maternity
benefit amount.  Also, if s/ he under this act, discharges or
dismisses such woman during or on account of her absence from
work. In accordance with the provisions of the Act

Then he shall be punishable with imprisonment which shall not be

less than three months. Therefore, the imprisonment extends to one
year or fined not less than 2000 INR that also may extend or both.
However, the court may, for sufficient reasons to be recorded in
writing, impose a sentence of imprisonment for a lesser term or fine
only in lieu of imprisonment.

It also, states if contravention to provisions of the Act or the rules

made thereunder is done by the employer. Then, he shall be liable to
punishment under the Indian penal court. Elsewhere provided by or
under the Act for such contravention. There can be imprisonment
for extending to one year, or fine extending to five thousand or both.
Where the contravention is of any provision regarding maternity
benefit or regarding payment of any other amount and such
maternity benefit or has not recovered the amount already. Thus,
the court shall, in addition, recover such maternity benefit or
amount as if it were a fine and pay the same to the person entitled
thereto.
 APPOINTMENT OF INSPECTORS

The appropriate government may, by notification in the Official Gazette, appoint such
officers as it thinks fit to be Inspectors for the purposes of this Act and may define
the local limits of the jurisdiction within which they shall exercise their functions under
this Act.

15. Powers and duties of Inspectors

An Inspector may, subject to such restrictions or conditions as may be prescribed,

exercise all or any of the following powers, namely:-

(a) enter at all reasonable times with such assistants, if any, being person in the
service of the government or any local or other public authority, as he thinks fit, any
premises or place where women are employed or work is given to them in an
establishment, for the purposes of examining any register, records and notices
required to be kept or exhibited by or under this Act and require their production for
inspection;

(b) examine any person whom he finds in any premises or place and who, he has
reasonable cause to believe, is employed in the establishment;

PROVIDED that no person shall be compelled under this section to answer any
question or give any evidence tending to incriminate himself;

(c) require the employer to give information regarding the names and addresses of
women employed, payments made to them and applications or notices received from
them under this Act; and

(d) take copies of any registers and records or notices or any portions thereof.

16. Inspectors to be public servants

Every Inspector appointed under this Act shall be deemed to be a public servant
within the meaning of section 21 of the Indian Penal Code (45 of 1860).

17. Power of Inspector to direct payments to be made

(1) Any woman claiming that-

(a) maternity benefit or any other amount to which she is entitled under this Act and
any person claiming that payment due under section 7 has been
     improperly withheld;
(b) her employer has discharged or dismissed her during or on account of her
absence from work in accordance with the provisions of this Act, may
     make a complaint to the Inspector.

(2) The Inspector may, of his own motion or on receipt of a complaint referred to in
sub-section (1), make an inquiry or cause an inquiry to be made and if satisfied that-

(a) payment has been wrongfully withheld, may direct the payment to be made in
accordance with his orders;
(b) she has been discharged or dismissed during or on account of her absence from
work in accordance with the provisions of this Act, may pass
     such orders as are just and proper according to the circumstances of the case.]

(3) Any person aggrieved by the decision of the Inspector under sub-section (2) may,
within thirty days from the date on which such decision is
     communicated to such person, appeal to the prescribed authority.

(4) The decision of the prescribed authority where an appeal has been preferred to it
under sub-section (3) or of the Inspector where no such appeal has
      been preferred, shall be final.

(5) Any amount payable under this section shall be recoverable by the Collector on a
certificate issued for that amount by the Inspector as an arrear of land
     revenue.

22. Penalty for obstructing Inspector

Whoever fails to produce on demand by the Inspector any register or document in

his custody kept in pursuance of this Act or the rules made thereunder or conceals or
prevents any person from appearing before or being examined by an Inspector shall
be punishable with imprisonment which may extend to [one year], or with fine which
may extend to five thousand rupees, or with both.

23. Cognizance of offences

(1) Any aggrieved woman, an office-bearer of a trade union registered under the
Trade Unions Act, 1926 (16 of 1926) of which such woman is a member or a
voluntary organization registered under the Societies Registration Act, 1860 (21 of
1860) or an Inspector, may file a complaint regarding the commission of an offence
under this Act in any court of competent jurisdiction and no such complaint shall be
filed after the expiry of one year from the date on which the offence is alleged to
have been committed.

(2) No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first

class shall try any offence under this Act.]

24. Protection of action taken in good faith

No suit, prosecution or other legal proceedings shall lie against any person for
anything which is in good faith done or intended to be done in pursuance of this Act
or of any rule or order made thereunder.

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.