Maternity is certainly, one of the greatest and the most transcendent manifestation of this nature but it comes with its own intricacies for the wombs that foster it. It is for this reason that Maternity benefits have been acclaimed as the most indispensable Human right as women continue to face dismissal and discrimination in hiring pertaining to their maternity. The environment at the workplace can put the health of the mother at perils due to maybe exposure to pesticides, solvents and other chemicals, compulsions of physically exacting work (e.g. heavy lifting); and irregular or prolonged stressful working hours. All these could be really detrimental to the health of pregnant women and their fetuses, including greater risks of preeclampsia and hypertension, complications during pregnancy, miscarriage, and stillbirth, fetal growth retardation, premature birth, and various other problems.
Article 25(2) of the Universal Declaration of Human Rights, 1948 enumerates that, “Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.”
In order to preclude the discrimination against women pertinent to marriage or pregnancy and to ensure their effective right to work, The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) had exhorted the State Parties too,
(a) Prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; (b) Introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances.
However, in the truest of its sense, the exigency to facilitate maternity benefits to the women was raised at the international level by the endeavors of the International Labour Organization (“ILO”), which proposes to ensure that women’s reproductive roles do not come in the way of their economic and employment security and that women’s work does not jeopardize the health of the women and her children.
The first Convention on Maternity protection, Convention concerning the Employment of Women before and after Childbirth, 1919 (Convention No. 3) was espoused during the first International Labour Conference (ILC) in 1919. This Convention was followed by two other conventions: Convention concerning Maternity Protection (Revised), 1952 (Convention No. 103) and Convention concerning the revision of the Maternity Protection Convention (Convention No.183) in 2000, which progressively augmented the realm and entitlements of Maternity protection at work.
Convention No. 3
The 1919 Convention proffers that no woman shall be allowed to work in any industrial or commercial undertaking for a period of six weeks after in any confinement. She must be capacitated to leave the work for the duration of six weeks before her confinement, by producing a suitable medical certificate-seeking the same. During the period of her absence, the employee is liable to receive paid benefits sufficient for the full and healthy maintenance of herself and her child, and free attendance by a doctor or certified midwife. Guaranteed nursing facilities, reinstatement in employment after leave and income security has to be provided during this period by the competent authority in each country, and the cost of the scheme is to be defrayed out of public funds unless otherwise provided under a scheme of insurance.
Convention No. 103
According to the ILO Maternity Protection (Revised), 1952 (Convention No. 103), every woman irrespective of age, nationality, and status in public or private, industrial or commercial undertaking was allowed to be absent for a period of six weeks prior to childbirth and required to be absent for a period of six weeks after the childbirth and for such absence she has to be allowed full benefits sufficient for the healthy and comprehensive maintenance of herself and her child. Additional benefits like two nursing breaks of half an hour per day and free attendance by doctors and midwives were also mentioned in this Convention.
Convention No. 183
Convention No. 183 enunciates the different aspects of Maternity protection such as Scope; Health protection; Employment protection; Maternity leave; Cash and medical benefits; Leave in case of illness or complications and non-discrimination etc.
The Maternity Benefit Act was legally pioneered in India for the very first time in the Bombay Legislative council on 28th July 1928 wherein it had been championed and defended by Dr. B. R. Ambedhkar himself. The Act was enacted by the Parliament in the 12th year of Republic of India on 12th December 1961 as Act no.53 of 1961 and got further amended in the year 2017. But the evolution and development of maternity benefits in India is also the result of the various judicial interpretations and sanctions.
Significant Judicial Pronouncements
Municipal Corporation of Delhi v. Female Workers (2000) SCC 224
Just social order can be accomplished only when inequalities are obliterated and everyone is presented with what is legally due. Women who represent almost half the chunk of our society have to be honored and treated with dignity at their workplaces. Whatever be the nature of their duties, their avocation and the place where they work; they must be provided with all the facilities to which they are entitled.
A woman employee, at the time of advanced pregnancy, cannot be impelled to undertake hard labor as it would be pernicious to her health and also to the health of her child. The employer has to be sympathetic and cooperative towards her and must acknowledge the physical intricacies which a working woman would face in performing her duties at the workplace while carrying a baby in the womb or while rearing up the child after birth.
Air India v. NargeshMirza (1981) 4 SCC 335
In this case, the Supreme Court had avowed that pregnancy is not any disability but it is a “natural consequence of marriage” and any intolerance or distinction made on the ground of pregnancy is exceedingly vexatious, manifestly arbitrary and unconstitutional as being violative of Article 14 and is therefore liable to be repudiated straight away.
Shah vs. Presiding Officer, Labour Court, Coimbatore and others (1977) 4 SCC 384
The performance of the biological role of childbearing inescapably necessitates the disengagement of a woman from the workforce for some period. During this period she is not only unable to work for her living but needs an extra income for her medical expenses. The assistance provided by the Act read in the light of Article 42 of the Constitution endeavors at allowing the woman worker to make up for her dissipated energy, nurse her child, conserve her efficiency as a worker and perpetuate the level of her previous productivity and output.
Rattan Lal and Ors.Vs. State of Haryana and Ors. 1985(3) SLR 548
In the above-mentioned case, the Supreme Court had vehemently deplored the state policy of denying salary and other allowances to the ad hoc teachers for the period of the summer vacations and ordered the payment of maternity benefits along with the above-mentioned privileges to them.
Bombay Labour Union vs. International Franchises Pot. Ltd. (1966) 2SCR 493
The Apex Court, in this case, had avowed that requiring an unmarried woman to abrogate her services immediately as she gets married as a part of a rule in a department of the pharmaceutical industry is absolutely unjustified.
So far as efficient operation is concerned, it can hardly be said that married women would be less efficient than unmarried women or widows apart of course from the question of maternity leave. If it were the presence of children which could be the reason for greater absenteeism among married women, then the case would be similar in the case of widows with children as well.
The Kerala High Court, in another recent judgment for Mini K.T. v. Life Insurance Corporation of India WP(c) No.22007 of 2012(A), Decided on 21-12-2017 also upheld that motherhood is integral to the dignity of the woman and that she can not be asked to choose between motherhood and employment.
Edited by Ojaswi Gupta
Approved & Published – Sakshi Raje
1.Adrienne Cruz, International Labour Office; https://www.ilo.org/wcmsp5/groups/public/—dgreports/—gender/documents/publication/wcms_192554.pdf
2. C183 – Maternity Protection Convention, 2000 (No. 183); https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C183; (last visited Jan. 31, 2020, 10:46 AM)
3. Dr. Lalit Dadwal and Dr. Kusum Chauhan, MATERNITY RIGHTS FOR WORKING WOMEN AND LAW IN INDIA: A CRITICAL ANALYSIS, International Journal of Social Science and Economic Research,Volume 3; Issue 12; December 2018;http://ijsser.org/2018files/ijsser_03__484.pdf
4. International Labour Standards on Maternity protection; https://www.ilo.org/global/standards/subjects-covered-by-international-labour-standards/maternity-protection/lang–en/index.htm; (last visited Jan. 31, 2020, 9:54 AM)
5.Maternity and paternity at work: Law and practice across the world;https://www.ilo.org/global/topics/equality-and-discrimination/maternity-protection/publications/maternity-paternity-at-work-2014/lang–en/index.htm
6. Maternity Protection in SMEs-An International Review; International Labour Organization, 2014; https://sustainabledevelopment.un.org/index.php?page=view&type=400&nr=1773&menu=1515
8. VenkataVaraPrasad Janjanam; Maternity Benefit Act 1961-A study on history, scope and amendments in India; https://www.researchgate.net/publication/324910243_Maternity_Benefit_Act_1961-A_study_on_history_scope_and_amendments_in_India