Law and You > Labour Laws > The Code on Social Security, 2020 > Maternity Benefits under the Social Security Code, 2020
In modern day society, economic pressures have increased the need for families to have dual incomes. 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. Women’s participation in economic activity is contingent upon various factors, via, biological, economic, social or cultural, which result in gender inequality in the family as well as in the economic and political system. The ongoing trends in labour market suggest that participation of women is going to increase which require more and more woman friendly environment at the workplace taking due care of their general needs. It would be important to understand the gender dimension of the labour force, as Generation of productive and gainful employment with decent working conditions is viewed as a crucial strategy for inclusive growth. In this article we shall discuss provisions on the maternity benefits under the Social Security Code, 2020.
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 the protective laws to safeguard their health in relation to Maternity and the children be enacted by the Central and State governments. Article 42 of our Constitution contains the directive that the State shall make provision for securing just and humane conditions of work and maternity benefits. Additionally in order to regulate the employment of women in certain establishments for certain periods before and after childbirth and to provide for Maternity benefits and certain other benefits the Indian Parliament enacted the Maternity Benefit Act, 1961. Now these provisions are added in Chapter VI containing Sections 59 to 72 of the Social Security Code, 2020.
The Chapter VI dealing with Maternity Benefits under the Social Security Code, 2020 is a crucial legislative measure that upholds the rights and dignity of working women. It ensures that women can embrace motherhood without sacrificing their careers or financial stability. By providing necessary support and protections, the Act fosters a more equitable and supportive work environment, benefiting not only women and their families but also society as a whole. The Act’s provisions are fundamental to promoting gender equality, improving public health, and driving economic growth, making it an indispensable part of modern labour laws.
Objectives of the Chapter VI of the Social Security Code, 2020:
- To entitle a woman employee d to maternity leave for a specified period before and after childbirth.
- To make employers to pay the woman employee during the maternity leave period.
- To provide a medical bonus to women employees in addition to maternity leave and to cover medical expenses related to pregnancy and childbirth.
- To disallow employer to assign any work that is strenuous or involves long hours or standing, which may adversely affect the health of the woman or the child during the maternity leave period.
- To prohibit the dismissal of a woman employee during the period of her maternity leave and to ensures job security for women during the crucial period of pregnancy and childbirth.
- To guarantee the right of a woman employee to return to the same position or an equivalent position with the same pay and benefits after the completion of her maternity leave.
- To recommend employers to provide facilities for nursing mothers to feed their infants. This includes providing a crèche facility if the establishment has a certain number of women employees.
- To make it mandatory to employers to inform women employees about the benefits available under the Maternity Benefit Act, and display information related to maternity benefits in a conspicuous place at the workplace.
In Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000) case, the Supreme Court observed that the Maternity Benefit Act, 1961 aims to provide all the facilities to a working woman in a dignified manner, so that she may overcome the “state of motherhood honourably, peacefully, undeterred by the fear of being victimised for forced absence during the pre or postnatal period”
Historical Background:
The origin of the scheme of maternity benefit can be traced towards the end of nineteenth century in Germany when maternity allowance itself became a part of the insurance scheme. Other developed countries, including the United Kingdom and Australia, also adopted similar schemes. In Great Britain, maternity allowance was included in the health insurance scheme in 1912 and in Australia; Maternity Allowance Act came into force in 1912. However, international recognition for maternity benefit was only achieved by the efforts of the International Labour Organization (“ILO”).
It was during the first International Labour Conference (ILC) in 1919 that the first Convention on Maternity protection (Convention No. 3) was adopted. This Convention was followed by two other conventions: Convention No. 103 in 1952 and Convention No.183 in 2000, which progressively expanded the scope and entitlements of Maternity protection at work. All the member countries of ILO were directed to pass suitable legislation to extend certain benefits to women during pregnancy and after childbirth.
As the Government of India was slow to act on these recommendations, the provincial governments took the lead. The Government of Bombay passed the Maternity Benefit Act, way back in 1926. It was followed by Central Provinces, Madras, U.P., Bengal and some other provinces. The period of leave, the quantum of benefit and the qualifying conditions varied slightly from province to province. With a view to reducing the disparities relating to maternity protection under different provincial or State enactments, there was a need of a Central Act on the subject.
After India attained Independence, the constitution was formulated and adopted in 1950. The constitution, which is the foundation and the guiding principle of all future legislations, contains specific provision, providing rights and privilege to the women. These right and privileges are contained in the Fundamental rights and Directive principles of the state policy. These rights and privileges are: right to equality in law (Article 14 of the Constitution of India), right to social equality (Id., Article 15.), right to social equality in employment (Id., Article 16.), right to protective discriminations (Id., Article 15 (3).) ,right against exploitations of women (Id., Article 23.), right to adequate means of livelihood (Id., Article 39 (a).), right to equal pay for equal work (Id., Article 39 (d).), right that the health and strength of workers both men and women are not abused(Id., Article 39 (e).), right to just and humane conditions of work and maternity relief (Id., Article 42.), and right to improvement in employment opportunities and conditions of the working women (Id., Article 46.).
Article 42, a directive principle of State Policy, states that “The State shall make provision for securing just and humane conditions of work and for maternity relief.” Art. 21, Right to Life and Personal Liberty means the right to lead meaningful, complete and dignified life. 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 Maternity Benefit Act, 1961 was enacted keeping in view all the pre-constitution legislations and the revised ILO Maternity Protection Convention, 1952. The Act was passed with a view to reduce disparities under the existing Maternity Benefit Acts and to bring uniformity with regard to rates, qualifying conditions and duration of maternity benefits. The Act repealed the Mines Maternity Benefit Act, 1941, the Bombay Maternity Benefit Act, 1929, the provisions of maternity protection under the Plantations Labour Act, 1951 and all other provincial enactments covering the same field. However, the Act does not apply to factory or establishment to which the provision of Employee’s State Insurance Act 1948 applies, except as otherwise provided in Sections 5A and 5B of the Act.
In 2020, it is combined with other labour laws into the Code of Social Security, 2020. Chapter VI of the Code deals with maternity benefits.
Provisions on Maternity Benefits under the Social Security Code, 2020:
Employment of, or Work by, Women Prohibited During Certain Period:
Restriction on Employer to Employ Woman under this Chapter:
According to Section 59(1) of the Code of Social Security, 2020 no employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy.
Restriction on Woman Employee under this Chapter:
According to Section 59(2) of the Code of Social Security, 2020 no woman shall work in any establishment during the six weeks immediately following the day of her delivery, miscarriage or medical termination of pregnancy.
No Work of Arduous Nature in this Period:
According to Section 59(3) of the Code of Social Security, 2020 without prejudice to the provisions of section 62, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do, during the period specified in sub-section (4), any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus or is likely to cause her miscarriage or otherwise to adversely affect her health.
According to Section 59(4) of the Code of Social Security, 2020 the period referred to in sub-section (3) shall be (a) the period of one month immediately preceding the period of six weeks, before the date of her expected delivery; (b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 62.
Explanation attached to Section 59 of the Code of Social Security, 2020 says that for the purposes of this section, the expression “any work of arduous nature” shall mean any work which involve or require strenuous effort or is difficult and tiring in nature.
Thus, according to Section 59 of the Code, no employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery, or miscarriage, nor shall any woman work during this period. Besides, no pregnant woman shall, on a request made by her in this behalf, be required by her employer to do any work of arduous nature, or that which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus; or is likely to cause her miscarriage or otherwise to adversely affect her health, during the one month immediately preceding the six weeks before the date of her expected delivery.
Right to Payment of Maternity Benefit:
Extent of Monetary Benefit:
According to Section 60(1) of the Code of Social Security, 2020 subject to the other provisions of this Code, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, and any period immediately following that day.
Explanation attached to Section 60(1) of the Code of Social Security, 2020 says that for the purposes 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, subject to the minimum rate of wage fixed or revised under the Code on Wages, 2019 (29 of 2019).
Eligibility for Availing Maternity Benefit:
According to Section 60(2) of the Code of Social Security, 2020 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.
Explanation attached to Section 60(2) of the Code of Social Security, 2020 says that for the purposes of calculating the period 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 expected date of her delivery shall be taken into account.
To be entitled to maternity leave, however, a woman must have actually worked for not less than 80 days in the twelve months immediately preceding the day of her expected delivery. Only working days are taken into account when calculating these 80 days. Weekly holidays and all leave – paid or unpaid – are not included. However, if a workman is laid off from work, such periods will be deemed as working days.
In Municipal Corporation of Delhi v. Female Workers (Muster Roll) (2000) case, the Supreme Court of India ruled that female workers on muster rolls were entitled to maternity benefits under the Maternity Benefit Act. The court held that the principle of equal pay for equal work applies to women working as daily-wage labourers and that they are eligible for maternity benefits like their regular counterparts.
In Rasitha C.H. v. State of Kerala case, petitioner was was denied maternity leave by the Calicut University on the grounds that the terms of her contract did not envision the grant of such leave. The Kerala High Court opined that the maternity benefit is neither only a statutory benefit nor a benefit growing out of an agreement. This court has consistently found that it is associated with a woman’s dignity…. The Court held that a woman employee cannot be refused maternity benefits only because her employment status is contractual and ordered Calicut University to pay petitioner maternity benefits, which are the same as those paid to other University workers, within two months.
In Mrs. Savita Ahuja v. State of Haryana & others (1998) case, the Punjab and Haryana High Court held that the petitioner should not be denied the right to maternity leave just because her job was solely temporary or ad hoc in nature. She is entitled to maternity leave with full pay for the duration of her confinement, and it was illegal to fire her from her job due to her pregnancy.
In Smt. Archana Panedy v. State of M.P., (2016) case, the issue was about whether the petitioners, as contractual employees, were eligible for maternity leave benefits. After considering the various judgments, the Madhya Pradesh High Court concluded that the Constitution requires her employer to give her access to all the amenities she needs to give birth and that there is no reason why a woman who works as a contract employee should not receive the benefits of the Maternity Benefit Act. The petitioner is to be given maternity benefits by the respondents.
In K.C Chandrika v. Indian Red Cross Society (2006) case, where the petitioner’s position as a clerk employed by the respondent was of a temporary nature but is likely to last indefinitely. The respondent granted the petitioner’s request for maternity leave after she made it. Three months were allotted for the leave. The respondent with notification informed the petitioner that her services had been terminated while she was on leave. The issue to be decided was whether petitioner’s service termination was valid or not. The Court determined that the respondent was required to restore the petitioner in service with continuity of service for the computation of service benefits after taking into account all pertinent facts.
In Air India v. Nargesh Meerza (1981) case, the Supreme Court struck down the discriminatory provision of the Act that fixed a maximum age limit for women to avail maternity benefits. The court ruled that maternity benefits should be available to all eligible women without any age restriction.
Maximum Period of Maternity Benefit:
According to Section 60(3) of the Code of Social Security, 2020 the maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the expected date of her delivery.
As per the Code, women were entitled to 26 weeks of maternity leaves. The time of maternity benefit of 26 weeks can be broken down to avail up to 8 weeks of leaves before the due date of delivery and the remaining leaves after childbirth.
In Anshu Rani v. State Of Uttar Pradesh (2018) case, where the petitioner was awarded 90 days of maternity leave with an honorarium, in lieu of the 180 days she had requested. She was not provided a rationale for having her leave term cut in half. The petitioner argued that according to 2017 amendment, maternity leave has been increased from 8 weeks to 26 weeks, and the petitioner is allowed to take advantage of it. After hearing the arguments of both sides the Allahabad High Court opined, “Maternity leave is social insurance. The maternity leave is given for maternal and child health and family support.” The Court also stated “in consonance with the provisions of Article 42, Parliament has made the Maternity Benefit Act, 1961. Since Article 42 specifically speaks of “just and humane conditions of work” and “maternity relief, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42.”
In Satakshi Mishra v. State of UP (2022) case, the Allahabad HC held that the Maternity Benefits Act, 1961 does not contain any such stipulation regarding the time difference between the first and second child for the grant of maternity benefits.
In Smt. Sonali Sharma v. State Of UP Thru. Prin. Secy. Deptt. Dibyangjan Sashaktikaran Nideshalaya Lucknow, UP, case, the Court held that there is no bar on taking a second maternity leave within 2 years from the grant of first maternity benefit and directed Director, Dibyangjan Sashaktikaran Nideshalaya Lucknow, UP to sanction ‘Maternity Leave’ to the petitioner.
In Dr. Rachna Chaurasiya v. State of U.P. case, where the state government was ordered by a division bench of the High Court of Madras to provide 180 days of paid maternity leave to all women, regardless of the type of employment they hold, permanent, temporary/ad hoc, or on a contractual basis. All female employees who are hired regularly, contractually, ad hoc, or temporarily and who have minor children who must be 18 years of age or younger and must be granted a 730-day childcare leave, according to supplementary instructions given to the state response. Maternity leave shouldn’t be separated from or excluded from a woman employee’s employment term.
Note: Female Government servants appointed to the Civil Services and posts in connection with the affairs of the Union are eligible for Child Care Leave (CCL) under Rule 43-C of the Central Civil Services (Leave) Rules, 1972 for a maximum period of seven hundred and thirty days during entire service for taking care of two eldest surviving children upto the age of 18 years.
Maternity Benefit by a Woman Having Two or More Surviving Children:
Proviso attached to Section 60(3) of the Code of Social Security, 2020 lays down that the maximum period entitled to maternity benefit by a woman having two or more surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery.
In J. Sharmila v. The Secretary to Government, Edu. Deptt. Madras (2009) case, where the petitioner had twins at her first pregnancy and a single child at her second. Consequently, the maternity leave was limited to the delivery of the second child and was not dependent on the norm for the third child. The Court opined that it is sufficient to say that if the state government wants to provide protection for the woman at her second delivery, it shouldn’t be based on how many children she has had throughout those two pregnancies. The importance must only be viewed from the perspective of the health of the female government employee, not from the perspective of how many children are delivered during each delivery. The Court held that the petitioner is entitled to receive her entire wage for the time she took maternity leave during her second pregnancy.
Maternity Benefit to Woman Who Dies in Benefit Period:
Proviso attached to Section 60(3) of the Code of Social Security, 2020 further lays down that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death.
Maternity Benefit to Woman Who Dies During Her Delivery:
Proviso attached to Section 60(3) of the Code of Social Security, 2020 also lays down that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.
Explanation attached to Section 60(3) of the Code of Social Security, 2020 says that for the purposes of this sub-section, “child” includes a stillborn child.
Maternity Benefit for Commissioning and Adoptive mothers:
According to Section 60(4) of the Code of Social Security, 2020 a woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.
The Code grants 12 weeks of maternity leave to women who lawfully adopt a child below three months of age and a commissioning mother. According to Section 2(13) of the Code on Social Security, 2020 “commissioning mother” means a biological mother who uses her egg to create an embryo
implanted in any other woman. A commissioning mother refers to a surrogate mother and has been defined as a biological mother who uses her egg to create an embryo implanted in any other woman. The 12-week maternity leave will start from the day the child is given to the commissioning or adoptive mother.
Thus, the maximum period of maternity leaves of 26 weeks can be availed for up to two children. For women with more than two children, the leave duration is 12 weeks. The Act also specifies that a woman isn’t required to work for six weeks following a miscarriage unless the miscarriage is a result of medical termination of the pregnancy. Additionally, 12 weeks of leaves can be availed by surrogate mothers and mothers who have adopted a child below three months of age.
In K Kalaiselvi v. Chennai Port Trust (2013) case, which seems to be the first case to address the topic of maternity leave in the context of children born through surrogacy, was made in 2013. According to the Justice K. Chandru, paying maternity benefits in accordance with the Port Trust’s leave policies is neither improper nor unlawful per se. The court determined that there was no justification for denying such leave, even though there is no mention of surrogacy specifically because the regulations relating to maternity are construed to mean and cover surrogacy as well.
In P Geetha v. the Kerala Livestock Department (2014) case, the Kerala High Court spent much time debating how to define motherhood legally in light of recent technological advancements like surrogacy. Contrary to natural births, when motherhood is truth, and adoption, where legal fiction declares someone to be the child’s mother, surrogacy is both and neither. Despite not being born of the mother, the child has her genetic makeup, therefore it is not solely a legal fiction. At the end of the case, the high court chose to quote a few sermons from Oprah Winfrey and snippets of text from Richard Dawkins and Charles Darwin’s works rather than offering a thorough definition of motherhood. The Kerala High Court, although noting and adopting the Kalaiselvi case, still restricts the benefits to those made accessible by the relevant legislation and, even then, disallows leave benefits related to the mother’s health because a surrogate mother does not actually give birth to the child.
In Rama Pandey v. Union of India (2015) case, Justice Shakdher of the Delhi High Court, bases his justification on the understanding of “maternity” as encompassing not just giving birth to a child biologically but also through adoption and surrogacy. To understand what surrogacy means in law and, consequently, what implications it has on the term “maternity” for the purposes of receiving maternity benefits, he does this by not only looking at the applicable rules but also other laws and the Supreme Court’s decision.
In Dr. Hema Vijay Menon v. State of Maharashtra (2015) case, the Justice Vasanthi Naik of the Bombay High Court argued that maternity leave should take into account not just the physical but also the emotional and psychological components of pregnancy, particularly the relationship between the mother and child, is supported by logic (and perhaps real experience).
In Dr. Pooja Jignesh Doshi v. The State of Maharashtra ([Writ Petition No. 1665 of 2015) case, where the petitioner was unable to carry a second child and chose surrogacy as a solution. The surrogate mother gave birth to a child, who was later adopted by the petitioner. The petitioner, requested maternity leave prior to the birth of the child but was rejected. The respondent refused the petitioner’s request for maternity leave to care for the surrogate child, claiming that the Leave Rules and the policy controlling the Rules do not allow for maternity leave for a surrogate kid. As a result, the question of whether a surrogate mother is entitled to maternity leave has arisen. Without delving into the merits of the case, the High Court relied on the same court’s decision in Dr. Mrs. Hema Vijay Menon v. State of Maharashtra. The High Court explored the idea of motherhood and pregnancy in this decision. The High Court observed that maternity is regarded to constitute a period of pregnancy and the period immediately following the birth of a child. The purpose of maternity leave is to maintain the dignity of motherhood and to offer care for the child’s and mother’s well-being, as well as for the mother-child relationship. Maternity leave is meant to help mothers and their children achieve social justice. To make a distinction between a mother who has a biological kid and one who has a child via surrogacy would be demeaning to the womanhood and motherhood of the woman who desires to nurture a surrogacy child in the same way she would a biological child. The right to life, as defined by Article 21 of the Indian Constitution, encompasses the right to motherhood as well as the right to the full development of every child. If the government can grant maternity leave to an adoptive mother, it’s difficult to see why the government won’t provide maternity leave to a mother who has a child through surrogacy. The Court ruled that even if a child is born through surrogacy, the parents who provided the ova and sperm are right to depart. Maternity leave is available to the mother, while paternity leave is available to the father.
Option of Work from Home:
According to Section 60(5) of the Code of Social Security, 2020 in case the work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.
An employer can allow a woman to work from home during pregnancy if the nature of work is such that it can be done from home. After the maternity leave period, the woman can also use the option of working from home for a mutually agreed-upon period between the company and the employee. However, the conditions of working must be mutually agreed upon between the employer and the employee. The employer must inform the pregnant woman of the maternity benefits during her first appointment. For the benefit to be paid during the maternity period, the employee must provide the required documents to the employer. The work-from-home benefits are a must for women as it gives them the privilege to spend time with the new born and give them necessary care.
In Prachi Sen v. Ministry of Defence (2021) case, where the employee was engaged in sensitive and challenging scientific work. Sensitive in the sense that it involved defence research, which was private and was not allowed to be made public. As a result, the petitioner’s work was of a type that prevented work from home from being feasible. The Karnataka High Court reaffirmed that the work-from-home advantage may only be granted in circumstances where the nature of the task provided to the woman permits her to do so.
Continuance of Payment of Maternity Benefit in Certain Cases:
According to Section 61 of the Code of Social Security, 2020 every woman entitled to the payment of maternity benefit under this Chapter, shall, notwithstanding the application of Chapter IV 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 32.
Chapter IV of the Code deals with Employees State Insurance Corporation and Section 32 of this Chapter deals with benefit. Every woman eligible for maternity benefits under this Act remains entitled to her, even if the Employees’ State Insurance Scheme applies to her establishment. Her entitlement continues until she qualifies for maternity benefits under the Employees’ State Insurance Scheme under the Code.
Notice of Claim for Maternity Benefit and Payment Thereof:
According to Section 62(1) of the Code of Social Security, 2020 any woman employed in an establishment and entitled to maternity benefit under the provisions of this Chapter may give notice in writing in such form as may be prescribed by the Central Government, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Chapter 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.
Any woman employed in an establishment and entitled to maternity benefits under this Act may give written notice to her employer. In the notice, she can state that her maternity benefits, along with any other entitled amount, may be paid to her or to a nominated person. Furthermore, she needs declare that she will not work in any establishment during the period for which she receives maternity benefits. Upon receiving the notice, the employer shall permit the woman to absent herself from the establishment during the period she receives maternity benefits.
According to Section 62(2) of the Code of Social Security, 2020 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 eight weeks from the date of her expected delivery.
According to Section 62(3) of the Code of Social Security, 2020 any woman who has not given the notice when she was pregnant may give such notice as soon as possible after her delivery.
According to Section 62(4) of the Code of Social Security, 2020 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.
According to Section 62(5) of the Code of Social Security, 2020 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 by the Central Government 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 by the Central Government that the woman has been delivered of a child.
The amount of maternity benefit for the period preceding the date of expected delivery shall be paid in advance by the employer to the woman upon the production of proof 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 the production of proof that the woman has delivered a child.
According to Section 62(6) of the Code of Social Security, 2020 the failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Chapter if she is otherwise entitled to such benefit or amount and in any such case an Inspector-cum-Facilitator 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.
Payment of Maternity Benefit in Case of Death of a Woman:
According to Section 63 of the Code of Social Security, 2020 if a woman entitled to maternity benefit or any other amount under this Chapter, 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 60, the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 62 and in case there is no such nominee, to her legal representative.
If a woman entitled to maternity benefits dies before receiving benefit, the employer must pay the benefits to the person nominated by the woman. If there is no nominee, the benefits should be paid to her legal representative.
Payment of Medical Bonus:
According to Section 64 of the Code of Social Security, 2020 every woman entitled to maternity benefit under this Chapter shall also be entitled to receive from her employer a medical bonus of three thousand five hundred rupees or such amount as may be notified by the Central Government, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.
Every woman eligible for maternity benefits under this Act is also entitled to a medical bonus of three thousand five hundred rupees from her employer, unless the employer provides free pre-natal and post-natal care.
Leave for Miscarriage:
According to Section 65(1) of the Code of Social Security, 2020 in case of miscarriage, or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed by the Central Government, 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.
In case of miscarriage or medical termination of pregnancy, a woman shall 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. However, for this, she needs to produce appropriate proof.
Leave for Tubectomy:
According to Section 65(2) of the Code of Social Security, 2020 in case of tubectomy operation, a woman shall, on production of such proof as may be prescribed by the Central Government, 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.
Tubectomy or tubal sterilization is a permanent method of contraception for women. In case of tubectomy operation, a woman shall 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. However, for this, she needs to produce appropriate proof.
Leave from Illness Arising Out of Pregnancy:
According to Section 65(2) of the Code of Social Security, 2020 a woman suffering from illness arising out of pregnancy, delivery, premature birth of child, miscarriage or medical termination of pregnancy shall, on production of such proof as may be prescribed by the Central Government, be entitled, in addition to the period of absence allowed to her under section 62, or, as the case may be, under sub-section (1), to leave with wages at the rate of maternity benefit for a maximum period of one month.
A woman suffering with pregnancy-related illness, childbirth, premature birth, or miscarriage can take an extra month of leave with wages, in addition to the regular maternity leave. However, for this, she needs to produce appropriate proof.
Nursing Breaks:
According to Section 66 of the Code of Social Security, 2020 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 such duration as may be prescribed by the Central Government, for nursing the child until the child attains the age of fifteen months.
Every woman who has given birth to a child and returns to work is entitled to two breaks during her daily work schedule for nursing her child until the child reaches fifteen months of age. These breaks are in addition to the rest interval she is allowed.
Crèche Facility:
According to Section 67(1) of the Code of Social Security, 2020 every establishment to which this Chapter applies, in which fifty employees or such number of employees as may be prescribed by the Central Government, are employed shall have the facility of crèche within such distance as may be prescribed by the Central Government, either separately or along with common facilities.
In Hindustan Lever Employees’ Union v. Hindustan Lever Ltd. (1995) case, the Supreme Court highlighted the need to provide crèche facilities in establishments to support working mothers. The Supreme Court held that it is the duty of the employer to provide crèche facilities as required under the Maternity Benefit Act, 1961.
Visits to Crèche Facility by a Woman:
The Proviso attached to Section 67(1) of the Code of Social Security, 2020 lays down that the employer shall allow four visits a day to the crèche by the woman, which shall also include the intervals of rest allowed to her.
Provision for Common Crèche Facility:
The Proviso attached to Section 67(1) of the Code of Social Security, 2020 further lays down that an establishment may avail common crèche facility of the Central Government, State Government, municipality or private entity or provided by non-Governmental organisation or by any other organisation or group of establishments who may pool their resources for setting up of common crèche in the manner as they may agree for such purpose.
According to Section 67(2) of the Code of Social Security, 2020 every establishment to which this Chapter applies shall intimate in writing and electronically to every woman at the time of her initial appointment in such establishment regarding every benefit available under this Chapter.
Thus, every establishment with fifty or more employees must provide a crèche facility, either separately or alongside other common facilities. The employer must permit the woman to make four visits to the crèche each day, which also includes her designated rest intervals. Additionally, every establishment must inform women in writing and electronically about all the benefits available under this Code at the time of their initial appointment.
Dismissal for Absence during Pregnancy:
According to Section 68(1) of the Code of Social Security, 2020 when a woman absents herself from work in accordance with the provisions of this Chapter, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service:
Proviso attached to Section 68(1) of the Code of Social Security, 2020 lays down that the discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus under this Chapter, shall not have the effect of depriving her of the maternity benefit or medical bonus:
Proviso attached to Section 68(1) of the Code of Social Security, 2020 further lays down that where the dismissal is for any gross misconduct as may be prescribed by the Central Government, the employer may, by order in writing, communicated to the woman, deprive her of the maternity benefit or medical bonus, or both.
According to Section 68(2) of the Code of Social Security, 2020 any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed under sub-section (1), may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to the competent authority, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus or both, or discharged or dismissed, shall be final.
When a woman is on maternity leave in accordance with this Act, the employer cannot discharge or dismiss her or give notice of discharge or dismissal. The employer also cannot change any of her service conditions. On the other hand, if a woman is discharged or dismissed during her pregnancy when she would have been eligible for maternity benefits or medical bonuses, she cannot be deprived of these benefits due to the discharge or dismissal. However, if the dismissal is due to severe misconduct as defined by regulations, the employer can withhold the maternity benefits or medical bonuses or both by informing the woman in writing.
The acts which constitute misconduct are
- Wilful destruction of employer’s goods or property;
- Assaulting any superior or co-employee at the place of work;
- Criminal offence involving moral turpitude resulting in conviction in a court of law;
- Theft, fraud or dishonesty in connection with the employer’s business or property; and
- Wilful non-observance of safety measures or rules or wilful interference with safety devices or with fire fighting equipment.
The aggrieved woman may, within sixty days from the date, on which the order of such deprivation is communicated to her, appeal to the prescribed authority, and the decision of the authority on such appeal shall be final.
No Deduction of Wages in Certain Cases:
According to Section 69 of the Code of Social Security, 2020 no deduction from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of this Chapter shall be made by reason only of—
(a) the nature of work assigned to her by virtue of the provisions contained in section 59; or
(b) breaks for nursing the child allowed to her under the provisions of section 66.
No deduction is permitted from the normal and usual daily wages of a woman entitled to maternity benefits due to the nature of work assigned to her, which means she is not engaged in strenuous or prolonged standing work or any task that might harm her pregnancy. Nor are deductions allowed for breaks for nursing her child.
Forfeiture of Maternity Benefit:
According to Section 70 of the Code of Social Security, 2020 a woman who works for remuneration during the period she has been permitted by an employer to absent herself for availing the maternity benefits provided under this Chapter shall not be entitled to receive maternity benefit for such period.
A female employee, however, can be deprived of maternity benefit if:
- After going on maternity leave, she works in any other establishment during the period she is supposed to, be on leave; or
- During the period of her pregnancy, she is dismissed for any prescribed gross misconduct;
In Anupam Yadav v. State of UP (2022) case, the Allahabad HC held that once the provisions of the Maternity Benefit Act, 1961 has been adopted by the State of UP as held by this court then the said Act of 1961 would apply with full force irrespective of the provisions contained in the Financial Handbook which is merely an executive instruction and would in any case be subsidiary to the legislation made by the Parliament.
Duties of Employer:
According to Section 71 of the Code of Social Security, 2020 an abstract of the provisions of this Chapter and the rules relating thereto in the language or languages of the locality shall be exhibited in a conspicuous place by the employer in every part of the establishment in which women are employed.
Power of Inspector-Cum-Facilitator to Direct Payments to be made:
According to Section 72(1) of the Code of Social Security, 2020 any woman claiming that,
(a) maternity benefit or any other amount to which she is entitled under this Chapter and any person claiming that payment due under this Chapter 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 Chapter, may make a complaint to the Inspector-cum-Facilitator.
Power and Duties of Inspector-cum-Facilitator:
According to Section 2(37) of the Social Security Code, 2020 “Inspector-cum-Facilitator” means an Inspector-cum-Facilitator appointed under section 122 of the Code.
According to Section 72(2) of the Code of Social Security, 2020 the Inspector-cum-Facilitator may, 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 order in writing;
(b) she has been discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Chapter, may pass such orders as he deems just and proper according to the circumstances of the case.
Appeal Against order of Inspector-Cum-Facilitator:
According to Section 72(3) of the Code of Social Security, 2020 any person aggrieved by the order of the Inspector-cum-Facilitator under sub-section (2) may, within thirty days from the date on which such order is communicated to such person, appeal to the authority prescribed by the appropriate Government.
(4) The decision of the authority referred to in sub-section (3), where an appeal has been preferred to it under that sub-section or of the Inspector-cum-Facilitator where no such appeal has been preferred, shall be final.
Conclusion:
The Maternity Benefit Act is a critical piece of legislation that plays a vital role in supporting and protecting the rights of working women during pregnancy and after childbirth. Here’s a detailed conclusion on its significance and impact:
Conclusion on the Maternity Benefit Act
The Maternity Benefit under the Social Security Code, 2020 serves as a cornerstone for gender equality in the workplace by ensuring that women are not disadvantaged in their professional lives due to maternity. The Code provides comprehensive support to women during one of the most important phases of their lives, encompassing health, financial security, and job protection. The Code ensures that women have adequate rest and recovery time before and after childbirth, which is essential for their physical and mental health. By providing paid leave, the Code reduces the stress and anxiety associated with job security and financial stability during maternity.
The provision of paid maternity leave ensures that women do not suffer a loss of income during the maternity period, contributing to their financial well-being. Additional benefits, such as medical bonuses, help cover pre-natal and post-natal medical expenses, easing the financial burden on new mothers. The Code protects women from dismissal or discrimination based on pregnancy, ensuring they can return to their jobs post-maternity leave without any detriment to their position or pay. This job security allows women to balance their professional and personal lives more effectively. By addressing the unique needs of women during maternity, the Code promotes gender equality in the workplace. It encourages female workforce participation, contributing to a more diverse and inclusive work environment.
The Code’s provisions for nursing breaks facilitate breastfeeding, which is crucial for the health and development of the child. Adequate maternity leave allows mothers to bond with their new-borns, promoting emotional and psychological development. The Code contributes to better public health outcomes by ensuring that mothers and children receive necessary care and attention. By supporting working women, the Code plays a role in economic growth and stability, as a more inclusive and productive workforce can drive overall development.