Maternity Leave in India – Law, Leave & Benefits

The Act applies only where ESIC is not applicable. It applies to factories, mines and circus. This Act is applicable on shops and establishments which employs 10 or more persons. There is no restriction with regard to the type of women employee for eligibility under the Act. Here, the definition of women employee shall include those as well who work on a contract basis or through an agency.

2. Eligibility under Maternity Leave 1961

In order to be eligible for benefits guaranteed under the Act, the woman employee must have worked for at least 80 days during the 12 months immediately preceding the date of her expected date of delivery of child in that particular establishment.  It is important to note that during the calculation of the count of 80 days, the paid holidays are also to be counted. 

3. Benefits Under Maternity Leave Act 1961

The Act has a specific mention that no woman shall be employed or shall work during six weeks after the day of her delivery, miscarriage or medical termination of pregnancy. Also, for one month preceding the date of expected delivery, the pregnant woman shall not be given work of arduous nature or which involves long hours of standing. As per the Section 5 of Maternity Leave Act, 1961, every employer shall ensure the following benefits to its women employee:

1. 1. The period of Maternity Leave of 26 weeks for two surviving children. In case, the woman has more than two children, then the leave allowed would be 12 weeks only
   2. In case of adoption of a child, where the child is below the age of 3 months or in case of commissioning mothers, the period of maternity allowed under the Act would be 12 weeks counted from the date of handover of such child
   3. In case of miscarriage or medical termination of pregnancy, upon production of proof, the woman employee is entitled to a leave of 6 weeks immediately from the date of miscarriage or termination, with wages at the rate of maternity benefit
   4. In case of tubectomy (family planning), upon production of relevant proof, the woman employee is entitled to a leave of 2 weeks from the date of her tubectomy operation, with wages at the rate of maternity benefit
   5. In case of illness arising out of pregnancy, delivery of child, premature birth of child, miscarriage, medical termination of pregnancy or tubectomy operation, the woman is entitled to a leave of absence with wages at the rate of maternity benefits, for a period not exceeding 1 month. This has to be supported by necessary documents issued by the doctors stating the necessity of such leave.
   6. Provided the nature of work allows, provision of work from home should be allowed to the new mothers upon joining back after their leave of maternity
   7. In case the establishment employs 50 or more employees, it is mandatory to provide crèche facilities and also permit four visits a day, including the rest break. Under the Maternity Leave Act, 1961, a woman is entitled to receive a medical bonus of one thousand rupees where there has been no pre-natal confinement and post-natal care. The amount has been increased to two thousand and five hundred rupees vide SO 2831(E), dated 19-12-2011. It is absolutely unlawful to dismiss or discharge a woman on account of absence from work during the period of leave that has been entitled to her under the Act.  Also, it is absolutely illegal to dismiss or discharge an employee any time during her pregnancy, where the employee would have been eligible to maternity benefits or medical bonus guaranteed under the Act. The government will appoint inspectors to ensure proper implementation of the Act. Maternity Benefit (Mines and Circus) Rules, 1963 have been made in respect of women employed in mines and circuses.

Dive Deeper:
Employees Compensation Act 1923
The Apprentices Act, 1961