Maternity Benefit – A legal Obligation

In India, the percentage of women engaged in employment is a mere 29.75%. This, in turn, means that 4 out of every 5 women are not employed, or are not actively seeking any employment activities. In order to engage female participation more women in the workforce, the Centre enacted the Maternity Benefit Act, 1961, in order to representation of women in the employment sector.

The maternity benefits for women

The Maternity Benefit Act, 1961 Act which necessitate  various benefits given to pregnant women workers and employess, was passed as a way to provide relief to struggling women to balance their work and household and family duties. In a view of the total number of women employed in a broad spread of occupational sectors, an increase in the number of employed women mandated the passing of a law that protects and safeguards the rights of women in terms of their maternity health and childcare. In the era preceding Independence, an array of women were made to work in mines, do difficult activities, and work night shifts while being pregnant, which affected their health and caused pre natal complications.

The Act was passed relieving women of such apprehensions and, in turn, establishing concepts such as maternity leaves with wages, payment of maternity benefits as defined under Section 3(h) of the Act, nursing breaks, rights against the deduction of wages, etc.,

Thus implementing a extreme improvement to their conditions. The Act was amended in 2017 on the recommendations of the Indian Labour Commission, thereby, giving additional rights to women regarding maternity health, which be better than standards of care given by countries in Europe and Asia regarding maternity health and benefits.

Rights of the women under the Maternity Act

The Act incorporate the rights and benefits that women are entitled to receive while employed, whether directly or through any agency, for wages in any establishment.

Objective of this act:

  • Regulates the employment of women.
  • In certain establishments for a certain period.
  • Before & after child birth.
  • It provides for maternity & other benefits. ‘‘Maternity benefits are aimed to provide for the maintenance of woman & her child, when she is not working.’’

Applicability of the act  

  • Where 10 or more workers are employed
  • Every establishment being a factory, mine or plantation.
  • Every establishment where persons are employed for the exhibition of equestrian, acrobatic §. § & other performances. ‘ The State Government with the approval of Central Government may extend it to other establishments after giving 2 months notice.’

Employee’s rights

Any woman as an employee of the establishment that she is part of, can exercise her rights under the Act, if she becomes eligible to do so. Section 4 and 5 deals with the rights that women have as being an employee or worker of an organization.

No work during certain periods: SubClause (1) and (2) of Section 4 provide that the employer cannot employ any woman, or engage her in any work if already an employee in such organization, within the duration of 6 weeks immediately after her delivery date/ miscarriage/ medical termination of the pregnancy.

Exemption from Difficult work: If a woman requests to do so, the employer must, for a certain period of time, exempt her from engaging in any difficult,hard, arduous, tiring, or lengthy activity that may affect her maternity health and wellbeing [Section 4(3)]. Such periods include:

  1. The period of one month immediately before the date of her expected delivery;
  2. any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under Section 6 of the Act.

Dismissal during absence[Section 12]: No employer can discharge, dismiss, or fired a woman during the period of absence as taken in accordance with the provisions of the Act. If she is dismissed and discharge at the time wherein she would have been applicable for the maternity benefit, such benefit would still be applicable to her. If in case such an employer does deprive women of the maternity benefit, such women have a remedy, by appealing to a prescribed authority, whose say in the matter is final.

Overriding Power of Contract[Section 27]: If, in an event that any woman, has signed an agreement or contract or received an arbitral award, etc., and the provisions for maternity benefit in such agreement/contract or award are more favourable to her than those which she is entitled to receive in accordance with the Act, then she shall be entitled to the more favourable benefits under the agreement/contract or award.

Maternity Benefit[Section 5,6 and 7]:This section provide for the right that women have to receive maternity benefit from their employers. In accordance with Section 5(2), a woman can only claim maternity benefit from an employer after completing a minimum period of 80 days in the employment of the establishment from whom such benefit is being claimed, in the 12 months immediately preceding the date of her expected delivery. Such benefit is available to any woman working in the employment of the establishment, irrespective of the contract she has with the establishment.

  • Municipal Corporation of Delhi vs. Female Workers (Muster Roll) & Anr[1]. In this case, the Municipal Corporation of Delhi granted maternity benefits only to the regular female workers,and denied it to female workers on the muster roll, and not regularised. The Court held that in accordance with Articles 14 and 15 of the Constitution “labour to whichever sector it may belong in a particular region and in a particular industry will be treated on an equal basis.”
  • Hindustan Antibiotics Ltd vs The Workmen & Ors[2]It was held that all women shall be entitled to receive maternity benefits from the establishment.
  1. Payment of Maternity Benefit: Every woman has the right to be paid maternity benefits from her employer at the rate of her average daily wage, for the total of the period wherein she has remained absent from employment, by taking leave in accordance to the provisions of the Act.
  2. Time Period for Maternity Benefit: The maximum period for which any woman would be eligible to receive such maternity benefit shall be 26 weeks, of which only a maximum of 8 weeks can be counted before the date of expected delivery. If a woman has 2 or more surviving children, then the benefit extends to only a period of 12 weeks of which a maximum of 6 weeks can be counted preceding her delivery date. In calculating the number of days viable to receive maternity benefit, the Act also includes the holidays as being included in such calculation.

Wages[Section 5]

The women claiming maternity benefits are to be paid their ‘average daily wages’ in the duration of their absence. Such ‘wages’ constitute varied amounts that are further detailed under Section 3(n) of the Act. Such wages include the cash allowances/income a woman is entitled to, at the prevailing time, house-rent allowances, incentives/bonuses, dearness allowances the concession of food and other articles provided by the employer.

Right against the deduction of wages: An employer cannot deduct the wage of a woman employee entitled to maternity benefit by reason of the nature of work assigned to her, breaks taken to nurse her child, or any other reason attributed to her maternal and post-delivery health/status.


The Maternity Benefit Act, 1961 as well as the Amendment of 2017, have proved to be a advantage, as well as a disadvantage to the country and its economy. However, the Government has played its part in matching international standards of maternity rights via these legislations so that the gender neutrality and efficiency of work is maintained in the country. It properly safeguards the rights of women and maternity and provides for the basic foundations of health and safety.


[1] 2000 (2) SCR 171.

[2] 1967 AIR 948, 1967 SCR (1) 652.

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