Maternity Benefit Act, 1961

Maternity Benefit Act, 1961


Introduction
The Universal Declaration of Human Rights, 1948, in Article 25(2) says that Motherhood and Childhood are entitled to special care and assistance. It is imperative for the Government to extend special benefits to women during the maternity period for general social well-being. Maternity leave laws are needed in any framework to protect the rights of women employees. The rights include pay, compassion, and certain privileges for the pregnant employee from the employer. The act also includes the education of women employees on their maternity benefits and rights at the workplace. Some organizations give facilities to their women employees to work from home or arrange for a daycare facility in office premises for their employees. All the companies have different rules for the women employees, but these rules should be in compliance with the Maternity Benefit Act, 1961 in India. This act was last amended in 2017. 

Applicability
By the virtue of Section 2 read with Section 3 of the Maternity Benefit Act, it is applicable to all establishments which are factories, mines, plantations, Government establishments, shops, and establishments under the relevant applicable legislation, or any other establishment as may be notified by the Central Government.
Under Section 5A and 5B, the establishment covered by Employees’ State Insurance Act, 1948 are exempted from this Act, but it is applicable to women employees earning more than the wage ceiling in an establishment covered under ESI Act, 1948. A woman employee, who is in the probation period can also avail of the benefits under this Act if she fulfills the criteria under Section 5.

Eligibility
Section 5 defines the eligibility for claiming the benefits under this Act. As per the Act, to be eligible for maternity benefit, a woman must have been working as an employee in an establishment, whether directly, or through an agency, for a period of at least 80 days in the past 12 months. Payment during the leave period is based on the average daily wage for the period of actual absence.
A woman could request her employer to assign her light work to avail of maternity benefits. This request should be made at least before 10 weeks of her date of expected delivery. The woman should produce a certificate 10 weeks before her delivery to the employer confirming her pregnancy. The employee needs to give written notice to the employer before 7 weeks of her date of delivery regarding her absence period.
Under Section 7, If the woman dies during delivery or in the period immediately following the delivery and the child survives, then the employer is liable to pay the full maternity benefit of that period to the child. But if the child dies, then the benefit is calculated up to and including the date of death of the child. Women engaged in casual or muster roll basis on daily wages also entitled.

Benefits under Maternity Leave
Employees are entitled to get paid while they are on maternity leave under Section 5. The compensation is calculated on her average daily earning over a 3-month period as soon as the leave begins. The Act states that 10 weeks up to the date of delivery, no pregnant employee should be given difficult tasks that may affect both mother and child. Under Section 11A, the employee has the right to the creche facility when she returns to her job after maternity leave if an establishment has more than 50 employees. Maternity leave is available for mothers adopting a new-born (less than three months old) and the duration is 12 weeks from the date of adoption. There is no provision for the adoption of older children.
The Act prohibits the employer from knowingly employing any woman in any establishment during six weeks immediately following the day of delivery or miscarriage. 

Rights Before Due Date of Delivery
i. A woman who is closer to her due date of delivery by 10 weeks shall not be given any work of arduous nature.
ii. She is entitled to paid maternity leave for 6 weeks before her due date of delivery.
iii. She shall receive maternity benefit at the rate of average daily wages for such a period of actual absence before delivery. 
iv. Such amount of maternity benefit before delivery shall be paid to her in advance if she had given notice of her pregnancy and of the date from which she would be going on leave to her employer in advance.
Rights After Due Date of Delivery
i. A woman shall not be employed in any establishment during the 6 weeks immediately following the day of her delivery/miscarriage / medical termination of pregnancy.
ii. The amount for such a period of six weeks shall be paid to her or to a person nominated by her within 48 hours of production of proof of the delivery.
iii. The maternity benefit shall be at the rate of the average daily wages.
iv. If she had not utilized the 6 weeks of leave before delivery, she can avail them after delivery up to a maximum of 12 weeks including those availed before delivery.
v. She is also entitled to receive a medical bonus of Rs. 250 from her employer if no prenatal confinement and postnatal care are provided by the employer free of charge.
vi. If she is suffering from illness arising out of pregnancy, delivery, premature birth of the child, miscarriage, medical termination of pregnancy or tubectomy operation, in addition to the leave availed under section 6 and section 9, she is entitled to leave with wages for a maximum period of 1 month.
vii. When a woman returns to work after delivery, in addition to the interval for rest allowed to her, she must be allowed two breaks of the prescribed duration in the course of her daily work, for nursing the child until the child attains the age of 15 months.
viii. When she absents from work in accordance with the provisions of the Act, the employer cannot discharge or dismiss her on account of such absence.
ix. Further, no deduction shall be made from the normal and daily wages for taking nursing breaks for not doing arduous work in accordance with section 4 of the Act.
Notice for Maternity Benefit
Section 6 states that notice for availing the benefits under this Act has to be given to the employer.  This has to be given in a prescribed form in writing. 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
The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on the production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.
The failure to give notice under this section shall not dis-entitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.

Inspectors: Powers and Duties
Section 14 lays down the procedure for the appointment of an inspector for the purpose of this Act, by the appropriate government, through the notice in the Official Gazette. The local limits of the jurisdiction of the inspector also have to be notified. Under Section 16, it is strictly stated that the inspector must be a Public Servant within the meaning of Section 21 of Indian penal Code, 1860.
Section 15 lays down the powers and duties of the inspector. These are listed as follows:
i. An inspector, at all reasonable times, can enter the premises of any establishment where the women are employed or work is given to them for the purpose of examining any registers, records, and notices required to be kept and exhibited by or under this Act and require their production for inspection.
ii. He can examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment: he cannot compel the person, under this section, to answer any question or give any evidence tending to incriminate himself;
iii. He can ask the employer to give information regarding the names and addresses of women employed, payments made to them, and applications or notices received from them under this Act;
iv. He can make copies of any registers and records or notices or any portions thereof.
Section 17 lays down the power of the inspector to direct the payments to be made to the woman employee by the employer. Normally, for any grievance under the Act, the aggrieved woman may approach the Inspector appointed under the Act. If he finds any discrepancies in the matter or payment of maternity benefits or unlawful dismissal, he may direct such payments to be made or appropriate order to be given.
However, where she is dissatisfied with the orders passed by the Inspector or where a larger question of law is involved, under Section 23, she may approach the Metropolitan Magistrate or a First-Class Judicial Magistrate of the competent jurisdiction. However, such a case must be filed within 1 year from the date of commission of an offence.

Amendments of 2017
The Maternity Benefit (Amendment) Bill 2016 (the “Amendment Bill”), an amendment to the Maternity Benefit Act, 1961 (“Act”), was passed in Lok Sabha on March 09, 2017, in Rajya Sabha on August 11, 2016, and received assent from President of India on March 27, 2017. The provisions of The Maternity Benefit (Amendment) Act, 2017 (MB Amendment Act) is effective from April 01, 2017. However, the provision on crèche facility (Section 11 A) shall be effective from July 01, 2017. Through the Amendment Act of 2017, there have been some changes in the provision of the Act. They are as follows:
i. No increased Benefit for Third Child: The increased Maternity Benefit is only available for the first two children. The Amendment provides that a woman having two or more surviving children shall only be entitled to 12 (twelve) weeks of Maternity Benefit of which not more than 6 (six) shall be taken prior to the date of the expected delivery.
ii. Adoption/Surrogacy: A woman who adopts a child below the age of 3 (three) months, or a commissioning mother (means a biological mother, who uses her egg to create an embryo implanted in any other woman), will be entitled to Maternity Benefit for a period of 12 (twelve) weeks from the date the child is handed over to the adopting mother or the commissioning mother.
iii. Creche Facility: Every establishment having 50 (fifty) or more employees are required to have a mandatory creche facility (within the prescribed distance from the establishment), either separately or along with other common facilities. The woman is also to be allowed 4 (four) visits a day to the creche, which will include the interval for rest allowed to her.
iv. Work from Home: If the nature of work assigned to a woman is such that she can work from home, an employer may allow her to work from home post the period of Maternity Benefit. The conditions for working from home may be mutually agreed between the employer and the woman.
v. Prior Intimation: Every establishment will be required to provide woman at the time of her initial appointment, information about every benefit available under the Act.