Women who constitute almost half of the segment of our society must be
honoured and treated with dignity at places where they work to earn their
livelihood; they must be provided all the facilities which they all entitled.
The Maternity Benefit Act, 1961 (amended in 2017) aims to provide all these
facilities to a working women in a dignified manner so that she may overcome the
state of motherhood honourably.
India is the largest democracy in the world. And various jurists like Bentham
and J.S. Mill propounded that;
"any law or provision which brings greatest good for the people, that law or
provision is acceptable although small number of people might be affected by the
The provision of the Act which have been set out in (Section 27) would indicate
that it is wholly in consonance with the DPSP, as set out in Article 38 and
Article 39, especially Article 42.
The Universal Declaration of Human Rights, 1948
It declares that motherhood and childhood are entitled to equal special care.
Article 03 of the Convention mandates that in all action concerning maternity,
whether undertaken by public departments or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best
interest of maternity (child) shall be the primary consideration. The nation's (organisations
or establishments) are required to take all appropriate measures.
This Article 03 expressly validates and affirms Section 27 of Maternity Benefit
Act, 1961 (amended in 2017).
Legal & Parliamentary Framework
Parliamentary Member labeled this amendment bill as a "priority" for government
The legal framework behind enactment of maternity Benefit Act, 1961 is:
- To protect the dignity of women's motherhood, with complete health care.
- To assure that women spend quality time with her child without ant worry
about her employment.
- To safeguard working women and their eights to remain self-reliant and
Therefore, any women can enter into any agreement with her employer for
granting her rights or privileges in respect of any matter, which are more
favorable to her than those to which he is entitle under Maternity Benefit Act,
1961. (Section 27(2) of this Act)
If any establishment enact any rule under their Fundamental Code of Employment,
for the better Maternity protection and to facilitate the dignified growth of
health of women and her child during maternity, than the Women has the right to
came into agreement with the employer, even if such Rule is not in consonance or
provide a larger beneficial vitae to women during maternity.
- The provision of Creches in Maternity benefit Act is limited to
establishment having at least 50 or more employees, (Sec. 11A) or, at least
30 female employees (Factories Act, 1948).
But, the Employer may make an agreement with women employee to provide
Creche facility, even below such prescribed limit.
- The Maternity Benefit Act, 1961 states that women should have worked
with her employer for at least 80 days in the 12 months preceding the date
of her expected delivery. (Section 5(2))
But, the Employer may come into an agreement with women employee to provide
her benefits under Section 5(2) of Act without such restriction.
- State of Uttarakhand vs. Urmila Masih (2019 SCC Online Utt 927)
A Fundamental rule was enacted by the establishment under head of Section
27, that is, the Organisation is not responsible for providing maternity
benefits to the women employed with employer for her third child.
Uttarakhand High Court held that; the language of Section 27 is for the
welfare and promotion of women's right and motherhood, not to put limitation
on existing right. The establishment or State is bound to provide maternity
benefits to women even for her third child.
- K. Umadevi vs. Government of Tamil Nadu & Ors. [(2022) 03 Mad CK
Madras High Court held that; The Provision of Maternity Benefit Acts, 1961
(amended in 2017) especially, Sec 27 is applicable to regular employees as
well as the women employees borne on muster roll of establishment or also to
women working in unorganized sector.
The Maternity Benefit Act was subsumed along with 14 other Acts in the draft
code on Social Security, 2019. This law applies to any organisation with 10 or
more employees. The Act states that a woman who has worked in an organisation
for at least 80 days is entitled to maternity benefits.
With respect to the provided Section 27; any women can enter into any agreement
with her employer for granting her rights or privileges in respect of any
matter, which are more favorable to her than those to which he is entitle under
Maternity Benefit Act, 1961. The employer must take all care and caution to bear
all cost of maternity and all other related benefits to which the women and
employer agreed under employment agreement.
Award Winning Article Is Written By: Mr.Rajat Tiwari
Authentication No: JU354612844230-29-0623