The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Rights, Fundamental Duties, and Directive Principles. The Constitution not only grants equality to women but also empowers the State to adopt measures of positive discrimination in favour of women. Within the framework of a democratic polity, our laws, development policies, plans and programmes have aimed at women’s advancement in different spheres. various legislation in india relating to women’s right are: The Provisions of The Protection of Women From Domestic Violence Act,2005., Dowry Prohibition Act, Immoral Traffic Prevention Act, The Maternity Benefit Act 1961, , Muslim Women (Protection of rights on divorce) Act, The Indecent Representation of Women (Prohibition) Act 1986, The Commission of Sati (Prevention) Act, Hindu Adoption And Maintenance Act In this article, we shall study the Maternity Benefit Act, 1961.
Historical Background:
Before the enactment of the Maternity Benefit Act, 1961, there were three different State Acts on the subject and three Central Acts, namely, Mines Maternity Benefit act, 1941, the Employees State insurance act, 1948, and Plantation Labour act, 1951. They varied in provisions related to qualifying conditions, periods, rate of benefit, etc.
The Maternity Benefit Act, 1961 has been amended through the Maternity (Amendment) Bill 2017 which was passed in the Lok Sabha on March 09, 2017. Thereafter, the said Bill was passed in Rajya Sabha on August 11, 2016. Further, it received assent from the President of India on March 27, 2017. The provisions of the Maternity Benefit (Amendment) Act, 2017 (“Amendment Act”) came into effect on April 1, 2017, and the provision with regard to the crèche facility (Section 11 A) came into effect with effect from July 1, 2017.
Object of the Act:
The Objects of the Act are as follows:
- to protect the dignity of motherhood and the dignity of a new person’s birth by providing for the full and healthy maintenance of the woman and her child at this important time when she is not working.
- to remove disparity of qualifying conditions, periods, rate of benefit, etc. between different Acts.
Features of the Maternity Benefit Act, 1961:
The main features of the act are as follows:
- The Maternity Benefit Act, 1961 is a legislation that protects the employment of women at the time of her maternity. It entitles women employees of ‘maternity benefit’ which is fully paid wages during the absence from work and to take care of her child.
- The Act is applicable to the establishments employing 10 or more employees. Every woman employee who may be employed directly or through any contractor and who has worked in an establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery shall be entitled to for the benefits.
- As per 1961 Act, the maximum period for which maternity benefit can be sought shall be 12 weeks in totality whether taken before or after childbirth. More than 6 weeks before delivery cannot be taken. As per Amendment Act, 2017, The maximum period for which maternity benefit can be sought shall be 26 weeks in totality whether taken before or after childbirth. More than 8 weeks before delivery cannot be taken.
- Under Section 5 of the Act, every woman covered under the Act 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 immediately preceding and including the day of her delivery and for the six weeks immediately following that day
- 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 one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.
- The State Government is empowered to extend any of the provisions of the Act to some other foundation or class of foundations, industrial, commercial, agricultural or otherwise with the approval of the Central Government by giving not less than two month’s notification of its goal of doing so.
- The Act bars the applicability of the provisions of the Act to any factory or other establishments to which the provisions of the Employees State Insurance Act,1984 applies except as otherwise provided in section 5A and 5B of the Act.
Constitutional Obligation to Pass the Act:
The rights for the upliftment of women are embedded under various Articles of the Constitution such as,
- Article 14- Right to social equality for all genders
- Article 15- Right to social equality in terms of employment
- Article 15(3)- Empowers the State to make special provisions for women in order to promote and preserve the strength and vigor of the race.
- Article 16- Equal opportunities for all citizens in matters relating to employment or appointment of any office under the State.
- Article 42- Right to just and humane conditions of work and maternity relief
- Article 46- Right to improvement in employment opportunities and conditions of working women
- Article 21- Right to Life and Personal Liberty in the context of providing a pregnant woman all the required facilities along with protection of her employment
Therefore, constitutional privileges go a long way in the enforcement of an Act.
Important Definitions:
Employer:
According to Section 3(d) of the Act, “employer” means–
- in relation to an establishment which is under the control of the Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department;
- in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority;
- in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person.
Establishment:
According to Section 2(e) of the Act, “establishment” means–
- a factory;
- a mine;
- a plantation;
- an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances;
- a shop or establishment; or
- an establishment to which the provisions of this Act have been declared under sub-section (1) of section 2 to be applicable.
Applicability of the Act:
The Act is applicable to the establishments employing 10 or more employees. According to Section 2 read along with Section 3 (e) of Maternity Benefits Act, 1961 (“Act”), the Act is applicable to establishments such as factories, (“factory” as defined in the Factories Act, 1948), mines (“mine” as defined in the Mines Act, 1952) and plantations (“plantation” means a plantation as defined in the Plantations Labour Act,1951). Further, as per the proviso of Section 2 of the Maternity Benefit Act, the State Government may, subject to obtaining approval from the Central Government, declare that the provisions of Act be applicable to any other establishment or class of establishments which are either carrying out industrial, commercial or agricultural activities or otherwise any other activity.
Provisions of this Act are not applicable to any factoryor other establishment in which provisions of the Employees State Insurance Act, 1948 apply for the time being.
Eligibility:
Every woman employee who may be employed directly or through any contractor and who has worked in an establishment for a period of at least 80 days during the 12 months immediately preceding the date of her expected delivery shall be entitled to for the benefits.
Benefits Under the Act:
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.
Cash Benefits
- Leave with average pay for six weeks before the delivery.
- Leave with average pay for six weeks after the delivery.
- A medical bonus if the employer does not provide free medical care to the woman.
- An additional leave with pay up to one month if the woman shows proof of illness due to the pregnancy, delivery, miscarriage or premature birth.
- In case of miscarriage, six weeks leave with average pay from the date of miscarriage.
Non Cash Benefits/Privilege:
- Light work for ten weeks (six weeks plus one month) before the date of her expected delivery, if she asks for it.
- Two nursing breaks in the course of her daily work until the child is 15 months old.
- No discharge or dismissal while she is on maternity leave.
- No change to her disadvantage in any of the conditions of her employment while on maternity leave.
- Pregnant women discharged or dismissed may still claim maternity benefit from the employer.
In addition to the above the Act also makes provisions to undertake light work activities for pregnant women 10 weeks prior to her delivery also nursing breaks during daily work till the child attends age of 15 months.
Restrictions on the Employment of Pregnant Women:
According to Section 4 of the Act, no employer shall knowingly employ any woman who is in the period of 6 weeks immediately following the day of her delivery or miscarriage or medical termination of pregnancy. No woman shall be working in any establishment during the period of 6 weeks.
No woman shall be engaged in any arduous work which may involve long hours of standing or any work which is likely to interfere with her pregnancy or cause miscarriage or adversely affect her health during the period of 1 month preceding the period of 6 weeks before the date of her expected delivery and also the period of 6 weeks for which she does not take leave.
Claim for Maternity Benefit:
Under Section 6 of the Act,
- Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act 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.
- 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 six weeks from the date of her expected delivery.
- Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery.
- On receipt of the notice, the employer shall permit such woman to absent herself from the establishment until the expiry of six weeks after the day of her delivery.
Amount of Remuneration Under the Act:
It is calculated by including the average daily wages for the actual absence period which is in fact the average wages payable to the woman on the days which she has worked during the period of 3 months immediately preceding the date from which she takes absence on the ground of maternity or Rupees 10, whichever is higher.
Other Related Benefits:
Death of a Pregnant Woman Employee:
As per Section 7 of the Act, maternity benefit shall be paid only for the days including and upto the day of death. Such benefit or amount shall be paid by the employer to the person nominated by the woman. If no nomination is made then her legal representative must avail of the benefit.
Medical Bonus:
As per Section 8 of the Act, every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of twenty-five rupees, if no pre-natal confinement and post-natal care is provided for by the employer free of charge.
Leave on Miscarriage:
As per Section 9 of the Act, in case of miscarriage, a woman shall, on production of such proof as may be prescribed, 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.
Nursing Breaks:
As per Section 10 of the Act, aA woman suffering illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall, on production of such proof as may be prescribed, be entitled in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.
Forfeiture of Maternity Benefit:
As per Section 18 of the Act, if a woman works in any establishment after she has been permitted by her employer to absent herself under the provisions of section 6 for any period during such authorised absence, she shall forfeit her claim to the maternity benefit for such period.
Inspectors:
As per Section 14 of the Act, the appropriate Government by notification in the Official Gazette, may appoint such officers as it thinks fit to be Inspectors for the purposes of this Act and may also define the local limits of the jurisdiction within which they shall exercise their function under this Act.
As per Section 16 of the Act, Inspector appointed under Section 14 of the Act is a public servant within the meaning of Section 21 of the Indian Penal Code.
Powers and Duties of Inspectors:
As per Section 16 of the Act, Inspector appointed under Section 14 of the Act is a public servant within the meaning of Section 21 of the Indian Penal Code.
As per Section 15 of the Act, an Inspector may, subject to such restrictions or conditions as may be prescribed, exercise all or any of the following powers, namely: –
- enter at all reasonable times with such assistants, if any, being persons in the service of the Government or any local or other public authority as he thinks fit, any premises or place where women are employed or work is given to them in an establishment, for the purposes or examining any registers, records and notices required to be kept or exhibited by or under this Act and require their production for inspection;
- examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment: Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself:
- require the employer to give information regarding the names and addresses of women employed, payments made to them, and applications or notices received form them under this Act; and
- take copies of any registers and records or notices or any portions thereof.
As per Section 17 of the Act, inspector can direct establishment to pay the payment in accordance with his orders.
Provisions for Penalty:
As per Section 21 of the Act, if any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees and where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto.
Under Section 22 of the Act, whoever fails to produce on demand by the Inspector any register or document in his custody kept in pursuance of this Act or the rules made thereunder or conceals or prevents any person from appearing before or being examined by an Inspector shall be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both.
Cognizance of Offence:
As per Section 23 of the Act, any aggrieved woman, an office-bearer of a trade union registered under the Trade Unions Act, 1926 (16 of 1926) of which such woman is a member or a voluntary organisation registered under the Societies Registration Act, 1860 (21 of 1860) or an Inspector, may file a complaint regarding the commission of an offence under this Act in any court of competent jurisdiction and no such complaint shall be filed after the expiry of one year from the date on which the offence is alleged to have been committed. No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.
Highlights of the Amendment in Maternity Benefit Act:
The Maternity Benefit (Amendment) Act 2017 has made changes to the Maternity Benefits Act, 1961. The amended Act put India third overall just behind Canada and Norway internationally in the number of maternity benefits being made accessible to the female employees of workforce
The significant point of the amendment Act is to regulate the work of women during the time of childbirth. It has amended the provision related to the duration and applicability of maternity leave and other facilities.
- To avail the benefits of the Act woman must be working as an employee in an establishment for a period of at least 80 days in the past 12 months to be entitled to maternity benefit under the provisions of the Maternity Benefit Act.
- The Act is applicable to all those women working in factories, mines and shops or business foundations which employ at least 10 employees. However, for those women who are expecting after 2 children, the duration of the leave stays unaltered at 12 weeks.
- It further stretched out the benefits to the adoptive and commissioning mothers by giving them 12 weeks of maternity leave from the date of adoption. The paid maternity leave can be availed 8 weeks before the expected date of delivery. Before the amendment, it was 6 weeks. Remaining 18 weeks can be availed post labor.
- The Act has introduced an enabling provision relating to work from home that can be practiced after the expiry of 26 weeks leave period. Contingent on the idea of work, women can avail this provision such terms that are commonly concurred with the business.
- The amendment Act has mandated a crèche facility for every establishment employing 50 or more employees. The women employees should be permitted to visit the facility four times during the day.
- The amended Act makes it mandatory for employers to inform the women workers about the maternity benefits available to them at the hour of their appointment.
“Crèche facility” in Establishment:
This provision is incorporated by Amendment Act, 2017. In terms of Section 11A of the Maternity Benefit Act, every establishment to which the Act applies and have fifty or more employees must establish a Crèche facility within such distance as may be prescribed through notification. The Creche must be established either separately or along with common facilities. The employer must allow women at least four visits a day to the crèche and it shall also include the interval for rest allowed to her. Every establishment is required to intimate in writing and electronically to every woman at the time of appointing her initially regarding every benefit available under the Maternity Benefit Act.
Conclusion:
Motherhood is a very special experience in a woman’s life. A woman needs to be able to give quality time to her child without having to worry about her job and her source of income. Article 42 of the Constitution of India imposes an obligation upon the state to make provisions for securing just and human conditions of work and for maternity relief. The Act properly safeguards the rights of women and provides for the basic foundations of health and safety. Provisions on extended maternity leave, offices like crèche, work from home and so forth have not only generated motivation in women to join the workforce but also motivated them to continue working.