The Maternity Benefit Act, 1961

To which establishments does this Act apply?

This Act extends to every shop or establishment where 10 or more people are employed, or were employed on any day of the preceding 12 months. It applies to every factory, mine and plantation – including government-owned establishments. The Act also applies to all establishments where persons are employed for equestrian, acrobatic, and other performances.

The state government – with the approval of the central government – may declare that the provisions of this Act applies to any other establishment or class of establishments – industrial, commercial, agricultural or otherwise – through a notification.

Who is entitled to the payment of maternity benefit according to this Act?

Every woman – subject to the provisions of the Act – is entitled to the payment of maternity benefit at the rate of her average daily wage for the period of her absence from work. The woman shall only be entitled to maternity benefit if she has actually worked in an establishment of the employer from whom she claims the benefit for at least 4 of the 12 months immediately preceding the date of her expected childbirth.

The maximum period for which any woman shall be entitled to maternity benefit shall be 26 weeks; of these, not more than eight weeks shall precede the date of her expected delivery. If the woman seeking maternity benefit has two or more surviving children, the maximum period of maternity benefit shall be 12 weeks, of which not more than six weeks shall precede the date of her expected delivery. In case the woman dies during this preceding period, the maternity benefit shall be payable only for the days up to and including the day of her death.

If a woman dies during delivery or immediately after the date of the delivery for which she is entitled to maternity benefits, leaving behind a child, the employer shall be liable to pay the maternity benefit for the entire period. If the child dies during this period, the employer shall be liable to pay the maternity benefit for the days up to and including the child’s death.

A woman who legally adopts a child below the age of three months or a ‘commissioning mother’ (a biological mother who uses her egg to create an embryo implanted in any other woman) shall be entitled to maternity benefit of 12 weeks from the date the child is handed over to her.

If the nature of the work assigned to a woman is such 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.

If a woman works in any establishment after she has been granted leave and maternity benefit by her employer, she shall forfeit her claim to the maternity benefit for the period.

When is the maternity benefit received?

The amount due as maternity benefit for the period preceding the date of the woman’s expected delivery shall be paid in advance by the employer, once the prescribed proof that she is pregnant is furnished. The employer shall pay the amount due for the subsequent period within 48 hours of the woman producing proof of childbirth.

What are the duties of employers under this Act?

No woman shall work for the six weeks following the day of her delivery, miscarriage or medical termination of pregnancy, and no employer shall knowingly employ her during this period. No pregnant woman shall, and no employer shall require her to, do work that is arduous or involves standing for long hours, or any work likely to interfere with her pregnancy or affect her health. This applies to the month preceding the first six weeks of a woman’s maternity benefit period (or six weeks before the date of her expected delivery).

Every woman who returns to duty after childbirth shall be entitled to two breaks daily for nursing the child until it is 15 months old. Every establishment with 50 or more employees shall have a crèche facility, and the employer shall allow a woman four visits to the crèche, including an interval for rest.

Employers cannot dismiss or discharge a woman absent from work under the provisions of this Act during or on account of such absence.

What does the Act say about miscarriages and illnesses arising out of pregnancy?

In the case of miscarriage or the medical termination of pregnancy, the woman shall be entitled to wages paid at the rate of maternity benefit for six weeks following the day of miscarriage or the medical termination of pregnancy.

If the woman suffers an illness due to pregnancy, delivery or premature childbirth, she shall be entitled to leave with wages at the rate of maternity benefit for a maximum period of one month.