This article is written by SHRUTI JAIN, 1^st year LL.B student of STATE LEVEL PG LAW COLLEGE, BHOPAL during her internship with LeDroit India.

About the Act

• Title –  The Maternity Benefit Act, 1961
• Enactment Date –  12^th December, 1961
• Total Sections –  30 Sections
• Extend –  Whole of the India

 This Act is enacted on the basis of Article 39 (e) and (f) of the Indian Constitution.

 “ State shall, in particular, direct its policy towards securing the health & strength of workers, men and women. ”

Introduction

Nature has given this wonderful gift to women to nurture life in their womb and they have to in no way face the undertaking of selecting among their task and their child. Neither of them should be harmed and thus, to maintain a balance between the two, the legislators of our country have enacted the Maternity Benefit Act in 1961.  This law was made to regulate the employment of women in certain establishments before and after a certain period.  To provide maternity benefits and certain other benefits to women in childbirth and out of employment on account of pregnancy.  This act repealed the Mines Maternity Benefit Act, 1941 and the Maternity Benefit Act, 1929.

Objectives of Maternity Benefit Act

• It aims to regulate the employment of women in certain periods before and after childbirth.
• To provide for maternity benefits including maternity leave, wages, bonus, nursing break, etc.
• And maintenance of the women and her child, when she is not working.

To whom Applicable this Act

1. It applies to each status quo being a:
   1. Factory,
   1. Mine,
   1. Or plantation
   1. Establishment belonging to the Government and
   1. Every status quo in which folks are hired for the exhibition of equestrian, acrobatic, and different performances.
2. This act additionally applies to all institutions using 10 or extra personnel on any day withinside the previous 365 days in an unorganized or prepared sector.

Not Applicable under the Act

This Act does not apply to factories or establishments to which the Employees’ State Insurance Act, 1948 applies; Except in sections 5A and 5B.

 Wages under the Act

All remuneration paid or  payable  in cash to  a  woman, if  the terms of the contract of employment, express or  implied, were fulfilled and includes –

1. All financial allowances that a woman is now entitled to (including dearness allowance and house rent allowance);
2. Incentive bonus; and
3. The money value of the concessional supply of foodgrains and other articles,

Conditions of employee under this Act

• A woman must work for at least 80 days in the twelve months immediately preceding the date of her expected delivery in the establishment to be eligible for maternity benefit
•  Prior to the 2017 amendment, it was twelve weeks, but now the maximum period for which any woman shall be entitled to maternity benefit is twenty-six weeks.
• From the date she leaves work, twenty-six weeks will be added to her sentence. She can take maternity leave for 8 weeks prior to the due date, and the remaining 18 weeks can be taken after the baby is born. However, the whole 26 weeks can be taken following delivery.
• For women already having 2 kids and are anticipating the third time the length of paid maternity depart will be 12 weeks i.e., 6 weeks pre and six weeks post-anticipated date of delivery.
• Adoptive moms and commissioning mothers are both covered by the amending Act, 2017, which states that every woman who adopts a child under the age of three months is entitled to 12 weeks of maternity leave from the date she adopts a kid under the age of three months.

Rate of Payment

Average daily wage =Amount earned in three months /No. of days in 3 months.

Medical Bonus

A medical Bonus of Rs. 3500 (minimum amount)

Claims in case of Death

• Women dies before delivery

Claim – till her death

• Women dies during / after delivery

Claim – entire period

• Women dies and child dies

Claim – till child death

Payment of Maternity Benefit

• Before Delivery – Payment in advance after a proof of pregnancy.
• After Delivery – Within 48 hours of a child birth,  a proof of pregnancy is required.
• In case of miscarriage – Leave of 6 weeks, immediately after the date of miscarriage.
• Additional leave for illness due to pregnancy, delivery and other – with pay upto 1 month.
• Nursing breaks – 4 (including rest interval).

Legal Obligations under this Act

• •           No Employer shall knowingly employ a woman in establishment during six weeks following date of her delivery or miscarriage.
• No women shall work in any establishment during the six weeks immediately the day following her delivery.
• It shall be unlawful for the employer to discharge or dismiss her on account of such misconduct.

Requirement of Notice Under this Act

• The pregnant woman must provide her employer written notice that her maternity benefit, as well as any other amount that may be paid to her or her nominee, will be paid to her or the nominee, and that she will not be working for the specified period.
•  She must identify the date from which she will be absent from work, which should not be more than eight weeks prior to her projected delivery date; if she did not give such notice while pregnant, she should do so as soon as possible after born.
•  Failure to provide such notice will not prevent her from receiving maternity benefits.

Penalties under this Act

Case Laws

In the famous case of Air India v Nargesh Merza,the conditions for retiring from service when an air hostess became pregnant were considered “grossly immoral” and forced termination of services if a woman became pregnant, which will be prohibited. He should not have any children.The court also held that pregnancy is not a disability but a natural consequence of marriage and its refusal is unfair.

Temporary female employees asserted in MCD v. Female Workers that they should be entitled to maternity benefits as well. The court ruled that under Articles 39 and 42 of the Indian Constitution, a woman cannot be forced to work during an advanced pregnancy because it would be harmful to her health and that of the child. As a result, she would be entitled to maternity leave for a period of time before and after the birth

Key Highlights of the Amendment 2017

1.  Increase in Maternity Benefit :-
   1. Paid maternity depart expanded to 26 weeks.
   1. Leave previous to anticipated transport date – eight weeks
2. No extended advantage for third toddler :-
   1. The extended maternity advantage is most effective to be had for the primary  youngsters.
   1. A ladies having  or greater surviving youngsters shall most effective be entitled to 12 weeks of maternity gain of which now no longer greater than six will be taken previous to the date of the predicted transport.
3. Adoptions / Surrogacy :-
   1. A ladies who adopts a toddler beneathneath the age of 3 months, or a commissioning mom could be entitled to Maternity Benefit for a length of twelve weeks from the date of toddler is passed over to the adopting mom or the commissioning mom.

 Conclusion

Every man or women has a few simple rights which might be critical for his or her existence.For the social, economic, and ethical boom of the society, there has been a want to create balance. Thus, the framers of our charter inserted sure provisions which especially covered ladies and talks approximately maternity advantages like:

Article 42 – which lays down provision for simply and humane situations of labor and maternity relief,

Article 14 – Right to social equality for all genders,

Article 15 – Right now no longer to be discriminated in opposition to primarily based totally on intercourse and additionally it empowers the State to make unique provisions for girls,

Article 16 – Equal possibilities for all residents in topics referring to employment or appointment of any workplace beneathneath the State aan

Article 21 – Right to Life and Personal Liberty withinside the context of offering a pregnant female all of the simple centers together with safety of her employment and livelihood. The gift Act become drafted even as preserving in thoughts the above provisions.A lady has a essential proper to dignity as a mom and the maternity depart length is part of the carrier length beneathneath the maternity coverage of India. Further, simply due to the fact a female receives pregnant does now no longer suggest she isn’t always capable of paintings with the equal zeal she makes use of to, sporting a infant doesn’t dispose of the mind and power she is born with. She is extra effective and complete of lifestyles whilst sporting a infant in her womb.

Pregnancy brings extra demanding situations in a girls’s lifestyles and all through such instances the company she is running for must be extra supportive instead of being judgmental that whether or not she will retain paintings or now no longer. She desires that fine paintings surroundings in order that she doesn’t assume that makingplans to begin a own circle of relatives become the worst choice of her existence. Also, the lady has a threat of having postpartum melancholy after childbirth.It is a mixture of emotional, behavioural and bodily adjustments in a girl after giving birth.It is a first-rate despair that starts offevolved inside four weeks after childbirth and one of the motives for purchasing it is able to be a task loss.Thus, we want to store our ladies from such mental affects and ought to offer them with all of the required maternity advantages with the guarantee of task security.Let’s make it clean for them in a few way.