The fundamental purpose for providing maternity benefits is to preserve the
self-respect for motherliness, protect the health of women, complete safety of
the child etc.
"Beginning in the 1800s with the Industrial Revolution, when women started to go
into the formal workforce, leaving working at home to working in factories,
countries realized they needed to do something. And they started to pass paid
maternity leave."....Jody Heymann
Maternity leave and parental leave is absolutely vital for strengthening
families. It's an issue for men, women and even baby in the womb and newborn
baby. At present in this competitive world family may not able to survive on one
person (Male) earning so, it has created an unavoidable situation to women to
participate in earning and some women because of their fashion towards their
aims and aspiration started to involve in earning works.
At this juncture a
woman has to perform multi tasks; here the most important task that has to
perform and that only can be performed by women is bearing and giving birth to a
child. Here it is proved fact that women involvement in work as well as to give
birth both are necessary for continuation of this society. To provide health
care to women and child by providing financial support to mother the concepts of
maternity leave and benefits or allowances to working women came in to force.
But in general people confused between parental leave, maternity leave and
family leave in fact there is a lot of difference among them.
Parental leave or family leave is an employee benefit available in almost all
countries. The term "parental leave" generally includes maternity, paternity,
and adoption leave. A distinction between "maternity leave" and "parental leave"
is sometimes made- maternity leave as the mother's leave time directly before
and after childbirth and parental leave being the time given to care for
newborns.In some countries and jurisdictions, "family leave" also includes
leave provided to care for ill family members. Often, the minimum benefits and
eligibility requirements are stipulated by law.
Unpaid parental or family leave is provided when an employer is required to hold
an employee's job while that employee is taking leave. Paid parental or family
leave providespaid time offwork to care for or make arrangements for the
welfare of a child or dependent family member. The three most common models of
funding are social insurance/social security (where employees, employers, or
taxpayers in general contribute to a specific public fund), employer liability
(where the employer must pay the employee for the length of leave), and mixed
policies that combine both social security and employer liability.
Parental leave has been available as a legal right and/or governmental program
for many years, in one form or another. In 2014, the International Labour
Organization reviewed parental leave policies in 185 countries and territories,
and found that all countries except Papua New Guineahave laws mandating some
form of parental leave.
A different study showed that of 186 countries examined,
96% offered some pay to mothers during leave, but only 81 of those countries
offered the same for fathers. The United States, Suriname, Papua New Guinea, and
several island countries in the Pacific Ocean are the only countries that do not
require employers to provide paid time off for new parents.
Main Object Behind Providing Maternity Benefits
The fundamental purpose for providing maternity benefits is to preserve the
self-respect for motherliness, protect the health of women, complete safety of
the child etc. The objective of maternity benefits is to protect the dignity of
' by providing the complete & health care to the women & her child
when she is not able to perform her duty due to her health condition. There is
need for maternity benefits so that a woman is to be able to give quality time
to her child without having to worry about whether she will lose her job and her
source of income.
A Separate Law In India To Provide Maternity Benefits
The maternity leave and benefits are provided to protect the dignity of
motherhood by providing for the full and healthy maintenance of woman and her
child when she is not working. As the number of women employees is growing in
India, maternity leave and other maternity benefits are becoming increasingly
common. In 1961, the Maternity Benefit Act was passed by Indian government
aiming at a uniform maternity benefit all over the country with an aims to
regulate the women employed in factories, shops or commercial establishments
where 10 or more employees engaged.
Because of so many international conventions like the Convention of the
Elimination of All Forms of Discrimination against Women (CEDAW), the
International Convention on Economic, Social and Cultural Rights (ICESCR), and
the Universal Declaration of Human Rights (UDHR) etc. International labour
organization (ILO) contribution andseveral expert bodies like the WHO have
recommended that 24 weeks of maternity leave is required to protect maternal and
At the same time national judicial pronouncements time to time
Indian government amending the maternity benefit Act to reform maternity benefit
Act 1961, in that way recently the Maternity (Amendment) Bill 2017,an amendment
to theMaternity Benefit Act, 1961, was passed in Rajya Sabha on August 11,
2016; in Lok Sabha on March 09, 2017, and received an assent from President of
India on March 27, 2017.
The provisions of The Maternity Benefit (Amendment) Act, 2017 are effective from
April 1, 2017. However, provision on crche facility (Section 111 A) shall be
effective from July 1, 2017.
The main aim of the Act is to regulate the employment of women during the period
of child birth. It has amended the provisions related to the duration and
applicability of maternity leave, and other facilities.
The Key Features And Implications Of The Maternity Benefits Act, 2017 Are:
Applicability of the Act:
As per Section 2 of the Act, The Act is applicable to
all those women employed in factories, mines and including every shops or
commercial establishments employing 10 or more employees. As per this section
the original provision will prevail i.e. the Act is applicable to all women who
are employed in any capacity directly or through any agency i.e. either on
contractual or a consultant.
Protection from termination or dismissal during the pregnancy
Section 12 of the Maternity Benefit Act, 1961 emphasizes that any dismissal or
discharge of a women during the pregnancy is unlawful and such employer can be
punished under section 12 of the Act. However, in cases of gross misconduct, the
employer can take necessary actions as per the defined disciplinary policy of
Duration of Maternity Leave in India:
The Act has increased the duration of paid
maternity leaves to 26 weeks from the present 12 weeks. The extended period is
applicable to women in case of the first and second child. Women who are
expecting after having 2 children, the duration of paid maternity leave shall be
12 weeks i.e. 6 weeks pre-delivery and 6 weeks post-delivery.
For adoptive and commissioning mothers:
The Act now extends to adoptive mothers
as well. Every woman who has adopted a child will get 12 weeks of maternity
leave from the date of adoption.
Work from Home:
It also introduces the option of work from home' for mothers.
After the expiry of the 26 weeks' leave period, the woman can use this option to
do her work from home. This option can be modified according to the nature of
the work and terms and conditions levied by the employer.
The Act makes it compulsory for every establishment employing 50 or
more women to have in-house crche facilities and allows women to visit the
facility 4 times during the day.but the age of the children up to
which age are entitled to the facility of crche is not mentioned in the Act.
The Act makes it compulsory for employers to aware women about the
maternity benefits at the time of their appointment.Such information must be
given in writing and electronically.
- The Maternity Benefit (Amendment) Act 2017 has increased the duration of
paid maternity leave available for women employees to 26 weeks from 12
weeks. However for those women who are expecting after having 2 children,
the duration of the leave remains unaltered at 12 weeks
- The paid maternity leave can be availed 8 weeks before the expected
date of delivery. Before the amendment, it was 6 weeks.
- The Maternity Benefit (Amendment) Act 2017 has extended the benefits
applicable to the adoptive and commissioning mothers and provides that woman who
adopts a child will be given 12 weeks of maternity leave from the date of
- The Act has introduced an enabling provision relating to 'work from
home' that can be exercised after the expiry of 26 weeks' leave period.
Depending upon the nature of work, a woman can avail of this provision on such
terms that are mutually agreed with the employer.
- The amended Act has mandated crche facility for every establishment
employing 50 or more employees. The women employees should be permitted to visit
the facility 4 times during the day.
- The amended Act makes it compulsory for the employers to educate women
about the maternity benefits available to them at the time of their appointment.
Significance Of The Amendment Act, 2017
The amended act has raised the maternity benefits from 12 weeks to 26 weeks.
This is significant and is in line with the recommendation of the World Health
Organisation which says that children must be exclusively breastfed by the
mother for the first 24 weeks. The extension in the maternity leave will help in
improving survival rates of children and healthy development of both mother and
This will also reduce the instances of women dropping out of the labour force
due to absence of adequate maternity leave.
The amended act also falls in line with international best practices such as the
Maternity Protection Convention, 2000 (No183) which calls for at least 14 weeks
of mandatory maternity benefit.
Another significant feature is the introduction of 12 weeks of maternity
benefits to the adopting and commissioned mothers.
The amended provisions have placed India third worldwide only behind Canada and
Norway globally in the amount of maternity benefits being made available to the
Some low lights in the Amendment Act, 2017
This Amendment promoting Patriarchy:
Many social scientists are of
opinion that it will promotepatriarchyas almost whole responsibility of child
caring are on the mother's as per this amendment. Government has not announced
any leave for fathers.
Adverse impact on the job opportunities for women:
Many private firms
may avoid giving jobs to such women who may enter intopregnancyperiod as then
they have to give them maternity leave up to 26 weeks.The increase in the
maternity leave could also have adverse impact on the job opportunities for
women. The requirement of full payment of wages during maternity leave could
increase costs for employers. It could result in increased preference for hiring
male workers. The provision could also impact the competitiveness of industries
that predominantly employs women workers.
- Lack of Clarity:
Various provisions of the amended act lack clarity.
For instance, there is no clarity in the act regarding the time period up to
which the crche facility could be extended to the employee and also regarding
the aspect of availability, frequency and extent of nursing breaks. The
provisions regarding the applicability of the Act to the unorganised sector also
Though, on one hand, the act states that it covers all women
working in mines, plantations, shops, and establishments as well as factories in
both organised and unorganised sectors. But on the other hand, the Unorganised
Workers' Social Security Act, 2008 defines unorganised sector workers as those
who are home based, self-employed, or wage workers working in an entity having
less than 10 employees. So the provisions did not clarify whether the act is
applicable to the women employees in those enterprises having less than 10
employees. This is disturbing as over 90% of the working women are employed in
unorganised sector in India.
- Lack of Institutional support:
Though the women working in unorganised sector can avail benefits from the schemes such as the Janani
Suraksha Yojanaand the Indira Gandhi Matritva Sahyog Yojana, they get their
benefit only in terms of cash assistance and lack other institutional support
provided in the maternity benefit Act.
Increasing maternity benefit is a welcome step but the government should devise
some mechanism to ensure that competitiveness of the private sector is not
-Need to bring uniformity in labour law about maternity
The government should try to bring about uniformity in labour laws
about maternity benefits. The acts like Employees State Insurance Act, 1948, All
India Services (Leave) Rules, 1955, Central Civil Services (Leave) Rules, 1972,
Factories Act, 1948, and the Unorganized Workers Social Security Act, 2008 have
differences in coverage, benefits and financing. All these laws must be
amalgamated to uniformly disseminate the benefits across various sectors in
-Better to rethink on financial burden of the
The present amendment has the potential to dissuade employers from
employing women as they have to bear the financial burden of maternity benefits.
So to stop this, the government should follow the advice of ILO. ILO has stated
that the cost of providing maternity benefits must not be exclusively borne by
the employer. In this regard, the government should come forward in addressing
the maternity benefit financing issues.
The government should opt for paying
benefits through compulsory social insurance or public funds as recommended by
the ILO. In this regard, the Pan-India expansion of Maternity Benefit Programme
(MBP)of the Ministry of Women & Child Development is a welcome step. The scheme
is applicable to all pregnant women and lactating mothers and excludes the
pregnant women and lactating mothers in regular employment with the Central
Government or State Governments and in Public Sector Undertakings.
-It should provide scope for Paternity benefit:
issue is that the amendments are silent on provisions regarding paternity
benefits. At present, paternity benefits are permitted in government jobs as a
part of leave rules and in private organizations as a matter of internal policy.
In this regard, ILO has recognised men's right to parenthood. It wants to see
men as active co-parent. In a country where gender stereotypes are predominant,
a gender-balanced approach to parenthood is needed. The government should come
up with a incentivised schemes regarding paternity benefits to achieve this
Motherhood was one of the most important and challenging jobs in the world and
that, in India, all religions have held the role of a mother as an esteemed
position. The court concluded that motherhood was an inherent and integral part
of a woman's dignity, which is protected by Article 21 of the Constitution as
per judicial pronouncements in India.
So, finally one can say that the
amendments are a welcome and positive move by the government. At the same time,
the government should address the above shortcomings and should work towards
ensuring that the law provides equal opportunities to women at the workplace.
'Any society that fails to harness the energy and creativity of its women is at
a huge disadvantage in the modern world' - - Tian Wei(CCTV News)
'So today, we call upon the world leaders to change their strategic policies in
favor of peace and prosperity. We call upon the world leaders that all of these
deals must protect women and children's rights. A deal that goes against the
rights of women is unacceptable' Malala Yousafzai
Written By: Koneru Anuradha
- Available at: http://www.azquotes.com/quote/1531372
- Available at : https://en.wikipedia.org/wiki/Parental_leave
- Available at : http://www.prsindia.org/billtrack/the-maternity-benefit-amendment-bill-2016-4370/
- Section 5(4)
- Section 5(5)
- Section 11A(1)
- Section 11A(2)
- Available at : https://www.weforum.org/agenda/2016/03/quotes-on-women-at-work/
- Available at : http://www.azquotes.com/quotes/topics/protect-women.html
Assistant Professor, Smt.V.D. Siddartha
Law College, Kanuru, Vijayawada,
E-mail: [email protected]