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ROLL NO:- 02

SESSION:- 2017-18



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

Objcetive of the Act:- 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.2 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.

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.3

Richa Jhanwar, “The Need for Maternity Benefits for Women Employee” Academike (2014).

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

1. Emancipate Discrimination on biological grounds:- 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.4

Economic Independence and considerable relaxation in work:- To safeguard working women

and their rights to remain self-reliant and economically independent, maternity benefits are
required.5 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.6

Women and Industrial Law: Maternity Benefit Act,
1961, 09/08/2014 (last visited October
3, 2017).
Vandana Kandari v. University of Delhi, (2010) 170 DLT 755.
Promoting the idea of maternity leave:- 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.7

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.8 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) linger9, they won’t have been able to continue in the business unless there is maternity
benefits provision.


The Maternity Benefit (Amendment) Bill, 2017 was passed by both Houses of Parliament, and has received
presidential assent on 27 March 2017. The Amendment will come into force on the date appointed by the
Central Government, by notification in the official gazette.

Shashi Bala, “Implementation of Maternity Benefit
Act”,, 09/08/2014 (last visited
October 4, 2017).
Stockard, Jean and Miriam M. Johnson, “Sex and Gender in Society”, New Jersey: Englewood Cliffs (1992).
Rudman, Lauria A., “The Social Psychology of Gender”, New York: The Guilford Press (2008)
1. Changes introduced by the Amendment

The Amendment introduces the following changes:

(a) Increase in duration of paid maternity leave: Duration of paid maternity leave for a woman
having less than two surviving children has been increased from 12 weeks (with not more than 6
weeks preceding the expected date of delivery) to 26 weeks (with not more than 8 weeks preceding
the expected date of delivery);

(b) Introduction of surrogacy leave and adoption leave: Paid adoption leave (if the adopted
child is less than three months old) and paid surrogacy leave of 12 weeks from the date when the
child is handed over, has been introduced;

(c) Work from home: The Amendment also introduces the option to work from home after
exhausting the period of maternity leave, on such terms as the employer and the woman may
mutually agree;

(d) Crèche facility: The Amendment makes it mandatory for each establishment with 50 or more
employees to have a crèche facility;

(e) Obligation to notify employees: Employers are also required to inform women of benefits
available under the Maternity Benefit Act, 1961 (MB Act). This needs to be done in writing and
electronically, at the time of the woman's initial appointment.

Other provisions of the MB Act, including the eligibility criteria for maternity benefit, remain
unchanged. Under the MB Act, a woman is eligible to receive maternity benefit if she has worked
for at least 80 days in the 12 months immediately preceding her expected date of delivery. Further,
the prohibition on employing a woman for six weeks following delivery, miscarriage or medical
termination of pregnancy, continues to apply. Unfortunately, no change has been made to include
statutory paternity leave, even though there were discussions in the Rajya Sabha to introduce child
care leave for fathers.
2. Critiques and Concerns

There has been a lot of discussion about the impact of the Amendment, and there are divergent
views on whether the Amendment will be beneficial in the long run. In most countries with
extensive child care benefits, the government shoulders at least some part of the financial
responsibility. In India, however, except for the fraction of employees covered under the Employee
State Insurance Act (ESI Act) (i.e. employees earning not more than INR 21,000 per month),
maternity benefits have to be financed by the employer. Therefore, there is an apprehension that
the requirement of providing increased benefits under the Amendment could have a negative
impact on diversity ratios at the workplace.

Additionally, from an implementation perspective, there are a few issues to be considered:

(a) Who would be eligible for the increased maternity leave: Currently, it is not clear whether
women who are in the midst of their 12-week maternity leave (under the un-amended law), will
be entitled to extend their leave to 26 weeks. In the absence of any clarity on this aspect, one may
look at the clarifications issued by the Employees State Insurance Corporation (ESIC) for guidance
since the ESI Act was also recently amended from 20 January 2017 to provide benefits similar to
the Amendment. The ESIC clarification specifies that the increased maternity leave can only be
availed if the actual or expected date of delivery was on or after 20 January 2017. Since the subject
matter of the benefit is the same under both the acts, it is possible that a similar approach could be
adopted in connection with the Amendment to the MB Act as well. We will however need to wait
and watch if the government takes a more beneficial view and extends the Amendment's benefit
to women who are in the midst of their statutory maternity leave, even if childbirth is prior to the
notified date.

(b) Who will be eligible for adoption and surrogacy leave: Similar questions would arise for
adoption and surrogacy leave. Would an adopting/commissioning mother be eligible to avail
adoption/surrogacy leave if the child is handed over to her before the Amendment is notified, but
if the 12 weeks leave entitlement period has not run out since the notification? Clarifications from
the government on this aspect would also be helpful.
(c) Ambiguity regarding provision of crèche facilities: The Amendment does not expressly
clarify if the crèche facilities must be provided free of cost. Most organizations that have set up
crèche's voluntarily, presently pass on the cost to the employee (sometimes at subsidized rates).
Since most of these companies operate in densely populated urban areas, the cost of extending
such facilities can be significant.

Statutes such as the Factories Act, 1948, and the Contract Labour (Regulation and Abolition) Act,
1970 already contain provisions around crèche facilities. Although not expressly stated, crèche
facilities are usually provided free of cost under these legislations. In the absence of any
clarification on this point under the MB Act, organizations (at least the smaller ones) may be
unwilling to bear the cost of usage of crèche facilities, especially in urban centres where expenses
are higher.

As per the Amendment, the government is required to prescribe the distance of the crèche from
the establishment. However, apart from the distance (and the cost factor discussed above), the
government should also endeavour to provide other clarifications, such as the age till which a child
can be kept in the crèche (the Factories Act, 1948 prescribes an age limit of 6 years), specific
requirements around construction, facilities and staff of the crèche, etc. Standardization on these
aspects would also help address liability issues to some extent, which could be a significant cause
of worry for several establishments setting up crèche facilities for their employees.

(d) Are visits to the crèche in addition to the nursing breaks: The Amendment specifies that a
woman should be allowed four visits to the crèche each day, which includes the interval for rest
allowed to her. However, no duration has been specified for each break. A separate provision under
the MB Act (Section 11) already permits women to take two nursing breaks (in addition to their
interval for rest) till the child is 15 months old. A plain reading therefore suggests that a woman
may be entitled to 6 breaks a day, which may cause operational strain to the organization.

Human rights provide a useful legal and normative framework, vocabulary and form of
guidance for public health actions, while enhancing the accountability of Governments.
Human rights and public health have the common objective of promoting and protecting
the well-being of all individuals. Human rights must be promoted and protected in order
to address the underlying determinants of health, including the empowerment of
individuals and communities to respond to health challenges and ensuring equitable,
effective delivery of services.10

Since the development of human rights, some newer aspects have been identified and
ascertained. Some of them are right to pollution-free environment, right to know, right to
development, right to leisure, right against discrimination and torture, right to health and
others. These rights are in addition to other basic rights like right to equality, right to
freedom, right to religion, cultural and educational rights, etc. Amongst these, right to life
has been emphasised time and again. Various international
declarations/treaties/conventions/protocols have also reiterated it on various occasions.

Such as Article 25 of the Universal Declaration of Human Rights, 1948 has stated that:
“Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family….” Similarly the Preamble to the World Health Organisation's
(WHO) Constitution also declares that it is one of the fundamental rights of every human
being to enjoy “the highest attainable standard of health”. This right also includes the right
to the underlying conditions of health as well as medical care.11

Article 12(1) of the Protocol on Economic, Social and Cultural Rights, States parties have
agreed to “… recognise the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.” Article 12(2) provides that the steps to achieve
the full realisation of this right shall include those necessary for:

12.(2)(a) The provision for the reduction of the stillbirth-rate and of infant mortality
and for the healthy development of the child;

(d) The creation of conditions which would assure to all medical service and
medical attention in the event of sickness.

Women's Health And Human Rights: Monitoring the Implementation of Cedaw (WHO publication, 2007) 1.
Franklin D. Roosevelt also advocated for a right to medical care in 1944. See, Franklin D. Roosevelt, “The Economic
Bill of Rights” — Excerpt from 11-1-1944 message to Congress on the State of the Union.
This article is reinforced by Article 24(2)(f) of the Convention on the Rights of the Child,
which requires States parties to “develop preventive health care, guidance for parents
and family planning education and services”.

This right to health carries more importance with reference to women keeping in view
their biological structure and child-bearing capacity and necessity. Articles 11, 12 and 14
of the Convention on Elimination of All Forms of Discrimination against Women,
197912(Cedaw) have declared in unequivocal terms that States shall take all appropriate
measures to eliminate discrimination against women in the field of health care in order to
ensure, on a basis of equality of men and women, access to health care services,
including those related to family planning and to eliminate discrimination against women
in rural areas in order to ensure to such women the right to have access to adequate
health care facilities, including information, counselling and services in family planning.
The duty of State parties to ensure, on a basis of equality between men and women,
access to health care services, information and education implies an obligation to respect,
protect and fulfil women's rights to health care.

Cedaw contains articles that are directly related to WHO's objective of assisting
Governments in protecting and improving women's health. Article 12 specifically directs
the States to take all appropriate measures to eliminate discrimination against women in
the field of health care, while others have a direct or indirect bearing on the enjoyment of
the highest attainable standard of health. It was provided that the States to ensure, on a
basis of equality of men and women, access to health care services, information and
education. It also implies an obligation to respect, protect and fulfil human rights related
to women's health. The State Governments have the responsibility to ensure that
legislation, executive action and policy comply with these three obligations.

It is also to be noted that once State parties have ratified Cedaw, they are under an
obligation to submit periodic reports to the Committee on the legislative, judicial,
administrative or other measures that they have adopted to implement the Convention.
As a result of which by 2004, 124 countries established legal mechanism to protect
women's right to health.

The International Conference on Population and Development (Cairo) of 1994 and the
platform of action adopted at the 1995 Fourth World Conference on Women (Beijing) gave
impetus to this movement of right to health of women. Cedaw's Committee in 2004
reported that:

It is a legally binding document.
482. The Committee is concerned about the situation of women's health and
particularly their reproductive health.

483. … The Committee recommends that the State party should give priority to the
situation of the adolescent population and also urges it to adopt measures to
strengthen the family planning programme and to guarantee access to sexual and
reproductive health services, attending to the information needs of the population,
particularly adolescents…. It also urges the State party to promote sex education for
the entire population, including adolescents, giving special attention to efforts to
prevent and combat HIV/AIDS and to improve the dissemination of information about
risks and ways of transmission.

WHO is committed to making human rights a central concern and advancing the right to
health and other health-related rights of women and girls around the world. WHO is also
helping to implement the various provisions of Cedaw. The Preamble to the World Health
Organisation's (WHO) Constitution also declares that it is one of the fundamental rights
of every human being to enjoy “the highest attainable standard of health”. This right also
includes the right to the underlying conditions of health as well as medical care.13


There has been considerable amount of cases wherein the supreme court dealt with the issue of
maternity relief in different aspects. They have been discussed as follows:

1. Air India v Nargesh Meerza, (1981) 4 SCC 335.

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

Franklin D. Roosevelt also advocated for a right to medical care in 1944. See, Franklin D. Roosevelt, “The Economic
Bill of Rights” — Excerpt from 11-1-1944 message to Congress on the State of the Union.
(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 another 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.

2. Municipal Corporation of Delhi v. Female Workers, (2000) SCC 224.

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.

3. Shah v. Presiding Officer, Labour Court, Coimbatore and others, (1977) 4 SCC 384: 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.

4. Mrs. Neera Mathur v. Life Insurance Corporation of India, 1992 AIR 392

The petitioner’s employment with the LIC was terminated after she returned from maternity leave.
The reason given was that she had withheld information about her pregnancy in a questionnaire
she had filled out at the time of her appointment. After a perusal of the questionnaire, the Supreme
Court found that it required female candidates to provide information about the dates of their
menstrual cycles and past pregnancies. The Court held that the questionnaire was an invasion
of privacy and directed the LIC to reinstate the petitioner and delete the offending columns from
its future questionnaires.

5. Ram Bahadur Thakur (P) Ltd. v Chief Inspector of Plantations, (1989) IILLJ 20 Ker

A female worker employed at the Pambanar Tea Estate was denied maternity benefits on the
grounds that she had actually worked for 157 days instead of the 160 days required to qualify for
them. The Supreme Court, however, held that for the purposes of computing maternity benefits,
all days including Sundays and unpaid holidays must be taken into consideration.

6. Municipal Corporation of Delhi v. Female Workers’ (Muster Rolls) and Another, Special
Leave Petition (civil) 12797 of 1998

The Municipal Corporation of Delhi stated that it granted maternity leave to its regular female
workers but not to the daily wage ones, that is, the ones on the muster rolls. The respondents argued
that the practice was unfair as there was hardly any difference in the work allotted to female
workers who were regular and those who were on daily wage. Accepting the contention, the
Supreme Court upheld the right of female construction workers to be granted maternity leave by
extending the scope of the Maternity Benefits Act, 1961 to daily wage workers.


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.”14 This provision has enabled the State to make special statutory
provisions exclusively for the welfare of women.15

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.

Muller v. Oregon, 52 L.Ed. 551.
Alok Chantia, Gender Justice: The Constitutional Perspectives And The Judicial
l_Approah, (lasted visited 09/08/2017).
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.”16


The law will also facilitate ‘work from home’ options for nursing mothers once the leave period
ends and has made creche facilities mandatory in establishments with 50 or more employees. The
amendment takes India up to the third position in terms of maternity leave duration after Norway
(44 weeks) and Canada (50).

However, while the law has brought some cheers on grounds that it at least acknowledges that
women are entitled to maternity benefits – crucial in a country notorious for its entrenched
discrimination against women and one that routinely features at the bottom of the gender equity
index – many are dismissing it as a flawed piece of legislation.

The critics point out that the new law will benefit only a minuscule percentage of women employed
in the organised sector while ignoring a large demographic toiling in the country’s unorganised
sector such as contractual workers, farmers, casual workers, self-employed women and

Another glaring flaw in the new legislation, say activists, is that it makes no mention of paternity
leave, putting the onus of the newborn’s rearing on the mother. This is a blow to gender equality,
they add. Global studies show lower child mortality and higher gender equality in societies where
both parents are engaged in child rearing. Paternity leave doesn’t just help dads become more

Judicial View on Shortage of Attendance,
of-attendence.html, (last visited 09/08/2017).
sensitive parents, show studies, it extends a helping hand to new moms coming to grips with their
new role as a parent.

According to a World Bank report titled Women, Business and the Law (2016), over 80-odd
countries provide for paternity leave including Iceland, Finland and Sweden. The salary during
this period, in Nordic countries, is typically partly paid and generally funded by the government.
Among India’s neighbours, Afghanistan, China, Hong Kong and Singapore mandate a few days
of paternity leave.