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Historical Background:
The Maternity Benefits Act (MBA), 1961 came into existence on 12th December 1961. This Act governs women’s employment during childbirth and offers maternity benefits. It applies to all the workplaces such as factories, mines, establishments and plantations.
Thereafter, The Maternity Benefits Bill, 2016 was introduced to raise enhance the maternity benefits and it was passed in Rajya Sabha. The MBA, 1961, was initially enacted to provide maternity benefits to women employed in certain establishments. It primarily addressed issues related to maternity leave, maternity pay, and other related benefits. There were various amendments made to this Aact and the last amendment came in the year 2017. The Maternity Benefits (Amendment) Act, 2017 is an amendment to the MBA, 1961. Amendments in the 2017 Aact wasare needed to align with modern workplace requirements and provide better support for working mothers.
Amendments in The Maternity Benefits Act, 1961
There were 4 amendments made to this act to align the MBA, 1961 with the changing needs of working women and to provide them with better support during pregnancy and motherhood.
Amendment in 1988: The 1988 amendment increased the duration of maternity leave from 12 weeks to 14 weeks. It also introduced provisions for prenatal and postnatal care and medical allowances.
Amendment in 1995: This amendment allowed for 6 weeks of maternity leave for women who had a miscarriage or medical termination of pregnancy.
Amendment in 2008: The 2008 amendment extended the duration of maternity leave for women who adopted a child below the age of three months and for commissioning mothers (women who use a surrogate to bear a child).
Amendment in 2017: One of the most significant amendments was made in Maternity Benefits Amendment Act (MBAA), 2017. It increased the maternity leave period from 12 weeks to 26 weeks for eligible women. It also mandated that every establishment with 50 or more employees should have a creche facility. Furthermore, it allowed women to work from home after the end of maternity leave for a certain period if the nature of their work permitted it.
Beneficial Provisions for Women under the Maternity Benefits Act, 1961
The MBA 1961 came up with various provisions which are designed to support and safeguard the well-being of women during the pregnancy phase of motherhood and even after that. These provisions acknowledge the significance of maternity leave and its benefits within the workforce. The MBA, 1961 is still relevant and in force, with its amendments in the Maternity Benefit (Amendment) Act, 2017.
Here are some of the key benefits provided by the 1961 Act with provisions:
Section 4: This section states that, no employer shall knowingly employ a woman in any establishment during the 6 weeks immediately following the day of her delivery or her miscarriage, no pregnant woman shall do any work which is of an arduous nature or which involves long hours of standing or which in any way is likely to interfere with her pregnancy or the normal development of the foetus or can cause her miscarriage. This section is retained in the Maternity Benefits (Amendment) Act , 2017.
Section 5: This section gives right to women to earn payment of maternity benefit from its employer. It stated that every woman shall be entitled to maternity benefit of 12 weeks and maternity benefit should not be availed before 6 weeks from the date of expected delivery. The Maternity Benefits (Amendment) Act, 2017 provided amendment to this section.
Section 5-A: This section suggests continuance of payment of maternity benefit to every woman, the application under Section 50 of the Employees’ State Insurance Act, 1948 shall be given to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit. This section is retained in the Maternity Benefits (Amendment) Act, 2017.
Note:
Section 50 of the Employees’ State Insurance Act, 1948 suggested that all female insurable employees can avail maternity benefits under the Act in cases of pregnancy or confinement.
Confinement, in this case, means labour which results in the birth of a living child. It can also mean birth after 26 weeks of pregnancy, whether the child is living or not.
This maternity benefit is generally payable to employees for three months. It may, however, be extendable for one more month depending on medical advice.
The compensation amount in such cases is the full wage amount of the employees. This is payable only if the employee makes a contribution for 70 days in the preceding year.
Section 8: This section suggests that every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus. This section is retained in the Maternity Benefits (Amendment) Act, 2017.
Section 11: Every woman who returns to duty after delivery of a child, shall be allowed to take 2 nursing leaves until the child attains the age of 15 months, in addition to the interval for rest allowed to her.
The Maternity Benefits (Amendment) Act, 2017 provided amendment to this section. Section 11(A) was added on, explained in detail later in the article.
Section 12 [2(a)]: In this section it is stated that if a woman has been discharged or dismissed by an employer then such a woman is entitled to maternity benefit or medical bonus referred to in section 8. This section is retained in the Maternity Benefits (Amendment) Act, 2017.
Section 15: The appropriate government appoints Inspectors to examine the establishments and to receive a complaint of a woman claiming maternity benefit or any other amount to which she is entitled to, mentioned under section 17. This section is retained in the Maternity Benefits (Amendment) Act, 2017.
Section 27: This section states that the rules of this Act apply even if they conflict with other laws, agreements, or work contracts whether those were made before or after this Act came into effect. If a woman is entitled to better benefits under any other arrangement, those benefits will still apply, even if this Act provides benefits for other matters. This Act doesn’t stop a woman from making an agreement with her employer for better benefits than what’s offered. This section is retained in the Maternity Benefits (Amendment) Act, 2017.
Transformative Shifts and Beneficial Provisions for Women under the Maternity Benefit (Amendment) Act, 2017:
The MBA, 1961 required quite a few amendments in terms of the definition of a mother, extension of the maternity leave duration, maternity benefits and provisions for flexible working, which were incorporated into the Maternity Benefits (Amendment) Act of 2017.
The important shifts are documented below:
- Commissioning Mother: The amendment Act introduced the term ‘commissioning mother’ in Section 3(ba) which means a biological mother who uses her egg to create an embryo implanted in any other woman. The Maternity Benefits Act, 2017 recognizes the rights of commissioning mothers in the context of surrogacy arrangements, ensuring that they receive the necessary support and benefits during the maternity period. This acknowledgment is significant as it provides legal protection and welfare measures to commissioning mothers who may require time off from work to care for their child born through surrogacy.
- Duration of Maternity Leave: Section 5 of the 1961 Act stated that every woman shall be entitled to maternity benefit of 12 weeks. The 2017 amendment act increases this to 26 weeks. Further, under the MBA, 1961, this maternity benefit should not be availed before 6 weeks from the date of expected delivery. The MBAA, 2017 Act changes this to 8 weeks. A woman who has 2 or more children, the maternity benefit will continue to be 12 weeks, which cannot be availed before 6 weeks from the date of the expected delivery.
- Leave for adoptive and commissioning mothers: The Amendment Act 2017, introduces a provision to grant 12 weeks of maternity leave to:
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- a woman who legally adopts a child below three months of age; and
- a commissioning mother.
- Option to Work from Home: The amendment act introduced Section 5(5) which stated the work from home opportunity shall be allowed by the employer with maternity benefits, ifboth agrees to the same.
- Creche facilities – Section 11(a):
This introduced clause stated that every establishment having 50 or more employees shall have the facility of crèche within such distance as may be prescribed, either separately or along with common facilities.
Clause 2 of this section states that every establishment must intimate a woman at the time of her appointment of the maternity benefits available to her. Such communication must be in writing and electronically.
The jurisdiction for cases related to the Maternity Benefits lies with the labour courts or industrial tribunals, depending on the nature of the dispute, as per the respective state’s laws on labour and employment.
Conclusion:
This article mentions certain provisions to inform the readers about the specific rights and entitlements that The Maternity Benefits Act,1961 and the Maternity Benefits (Amendments) Act, 2017 grants to women during pregnancy. The case mentioned above shows how these legal provisions can be interpreted and applied practically.
As we are progressing towards the future, it is highly essential to create such a legal framework which is necessary for social progress and dignity of a woman, that are echoed in workplace organisational structures, policy and practice. Therefore, as suggested above certain aspects which shall be included in the act.
Therefore, the Maternity Benefit Act, 1961, as amended in 2017, continues to be relevant and provides crucial benefits and protections for women employees in India. Empowering pregnant women with awareness and access to provisions that support their needs and rights at workplace, goes a long way to honour their journey of motherhood and contribute as a better society.
FAQs
Here are a few FAQ’s to support your understanding of the Maternity Benefits Act (MBA), 1961, and the Maternity Benefits Amendment Act (MBAA), 2017.
As mentioned above in Section 5 of the 2017 act the maternity leave duration has been extended to a period of 26 weeks. Also, under this provision, pregnant employees have the flexibility to divide their leave into segments, 8 weeks before the delivery and the remaining time following childbirth. This provision primarily applies to the first two children. For women with two or more children or for their third child, the designated maternity leave period stands at 12 weeks. An application of extension shall be sent by the employee to the employer for extension. All the maternity benefits shall be provided to them with this leave.
- Women under pregnancy are not sure about the real time of delivery which could lead them to extend their maternity leave.
- Post-delivery, a woman goes through severe health issues which leads her to extend her leave.
- In case of a miscarriage as mentioned under section 9 of the act, shall on production of such proof 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.
Yes. The Maternity Benefit (Amendment) Act, 2017 through the introduction of the term “Commissioning Mother” and recognition of and provision of benefits to extend support to mothers who have had their child through surrogacy
A bill to provide paternity benefits to all employees was introduced in 2017, but it was not passed in parliament. But despite the lack of legislation mandating paternity leave, many private companies continue to provide the benefit, albeit under their own rules.
Written by Anjali Sharma (Intern), in collaboration with Rosanna Rodrigues. Reviewed by Deeksha Rai