In the present day, let it be an educated woman or an illiterate, it is very common to find them working and earning for livelihood without depending upon men, for the same. They have grown independent and are also outgrowing men in various streams. But this cannot change the law of nature of a woman turning into a mother, which requires, being responsible towards the child, being available for the child, emotionally and physically, at least for the starting few months after the birth of the child. The Government of India understands the situation of working women and has implemented The Maternity Benefit (amendment) Act, 2017, which provides the benefits of paid maternity leave before and after the birth of the child.[i]
Other Benefits Available:
- A woman adopting a child below the age of 3 months and a commissioning mother can avail maternity leave for a period of 12 weeks, which starts from the day the child is handed over. (Section 5(4) inserted in 2017 amendment Act)
- A woman can also choose to work from home with the consent of the employer. (Section 5(5) inserted in 2017 amendment Act)
- Creche facilities should be made available within a prescribed distance in every establishment which has more than 50 women employees. Which could be used by them four times a day. (Section 11A inserted in 2017 amendment Act)[ii]
- Leave for miscarriage or medical termination of pregnancy, leave with wages for tubectomy operation, payment of medical bonuses etc.[iii]
Eligibility:
- A woman shall be eligible to avail maternity leave only if she has worked in an establishment for 80 days in the preceding 12 months from the date of delivery.
- To avail the leave before the date of delivery, the pregnant employee must provide the employer with a written notice in advance with information of the dates of absence and pregnancy certificate.
- To avail the leave of absence after the delivery also, the employee is required to issue a notice to the employer with the certificate of delivery.[iv]
- The Maternity Benefit (amendment) Act, 2017 shall apply to every factory, mine and plantation, and any shop or establishment in which ten or more persons are employed, or were employed on any day of the preceding twelve months. It does not, however, apply to factory or other establishments to which other maternity benefit laws apply.[v]
Exceptions:
1. According to The Maternity Benefit (amendment) Act, 2017, a woman is entitled for maternity leave for a period of 26 weeks if she has two surviving children, but she would be entitled to only 12 weeks if she is availing the benefit for giving birth to the third child.[vi]
2. If the employee is insured under Employee’s State Insurance Act, 1948, and fails to attend the medical test without any satisfactory reason, she may not be entitled to the benefits. But such disqualification shall be limited only to a number of days as decided by the prescribed authority.[vii]
Challenges:
- The employer faces the major key challenge of bearing the cost of providing maternity benefits wholly, unlike in other countries where the cost is shared by the employer and the State Government.
- The women employees face the problem of low preferential value as compared to men due to the challenges faced by the employer.
- The other major challenge faced by women workers is that the government has not included the women working in unorganized sectors and the establishments which has employed less than 10 employees, which includes the major population of working women.
- The challenges are also faced by the male employees as the government has not implemented any law relating to paternity leave, the government fails to understand that it is important for both the parents to be available for the child, emotionally and physically, for the better growth of the child.
- The other important challenge is that the medical bonus paid are very low as against the changing inflationary rates in India.[viii]
Solution:
All the women employees entitled to maternity benefits under the maternity benefit laws can avail the benefits from the employer, but if the employer refuses to grant or reduces the benefits or violates any provision of Maternity Benefits Act, 1961, the employer shall be fined for rupees not more than 5000 or imprisoned for a period not more than 1 year or both, under Section 21 of the Act. And to see that the provisions are not being violated by any employer, the government shall appoint inspectors who shall have the powers to ensure the same.[ix]
Cases and illustration:
In this case, the petitioner had been working as Junior Engineer in the civil department under the respondent, where she had been working on a contractual basis since last 2 years. She had applied for maternity leave for a period of 16 weeks, which was granted by the respondent. For the contract period to come to an end, 1 week was still remaining even after the applied period of maternity leave was over. But the respondent had dismissed the petitioner before the contract period was over. The petitioner filed the petition praying for the respondent to pay the salary for the remaining 1 week as according to the Maternity Benefit (amendment) Act, 2017, the maternity leave had been extended to 26 weeks, which means that the remaining 1 week is also included in the maternity leave period. It was decided that the definition of woman under the Act also includes the woman working under a contract or a woman employee hired through an agent.[x]
Conclusion:
It can be concluded that all the women workers included in the various maternity benefit laws are safe, and none can restrict them from availing their right of maternity benefits. But the workers not included under the law are still suffering, working hard for their family’s livelihood even at the stage of pregnancy. As there is no law providing any type of benefits or subsidiary to such women, working in the unorganized sectors. The other important lacuna is that, no proper recognition is given for the need of the father’s presence and support for the new born child and the vulnerable mother.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[i] Helpline Law, Maternity Leave & Paternity Leave Benefits in India, http://www.helplinelaw.com/family-law/MPBI1/maternity-leave-and-paternity-leave-benefits-in-india
[ii] SCC Online Blog, The Maternity Benefit (Amendment) Act, 2017, notified https://blog.scconline.com/post/2017/03/29/the-maternity-benefit-amendment-act-2017-notified/
[iii] Mondaq, India: Maternity Leave In India Increased To Six Months, April 6, 2017. http://www.mondaq.com/india/x/583462/Employee+Benefits+Compensation/Maternity+Leave+In+India+Increased+To+Six+Months
[iv] India Briefing, Maternity Leave in India: The Law and Benefits, November 15, 2018. https://www.india-briefing.com/news/maternity-leave-india-law-benefits-10294.html/
[v] SCC Online Blog, The Maternity Benefit (Amendment) Act, 2017, notified https://blog.scconline.com/post/2017/03/29/the-maternity-benefit-amendment-act-2017-notified/
[vi] India Briefing, Maternity Leave in India: The Law and Benefits, November 15, 2018. https://www.india-briefing.com/news/maternity-leave-india-law-benefits-10294.html/
[vii] Helpline Law, Maternity Leave & Paternity Leave Benefits in India http://www.helplinelaw.com/family-law/MPBI1/maternity-leave-and-paternity-leave-benefits-in-india
[viii] Mondaq, India: Maternity Leave In India Increased To Six Months, April 6, 2017. http://www.mondaq.com/india/x/583462/Employee+Benefits+Compensation/Maternity+Leave+In+India+Increased+To+Six+Months
[ix] Indiankanoon, Maternity Benefits Act, 1961, https://indiankanoon.org/doc/600217/
[x] Jeslin Jose A. v. Cochin Port Trust Willington Island and Another – 2019 LLR 262
(It was decided that, an employee under contract can also avail for maternity leave for the period of 26 weeks)
