MATERNITY BENEFIT ACT, 1961 with latest amendments of 2017

With the object of providing maternity leave and benefit to women employee the Maternity Benefit Bill was passed by both the Houses of Parliament and subsequently it received the assent of President on 12th December, 1961 to become an Act under short title and numbers "THE MATERNITY BENEFIT ACT, 1961 (53 OF 1961)". This was an act to regulate the employment of women in certain establishments for certain period before and after child-birth and to provide for maternity benefit and certain other benefits.

The object of maternity leave and benefit is to protect the dignity of motherhood by providing for the full and healthy maintenance of women and her child when she is not working. With the advent of modern age, as the number of women employees is growing, the maternity leave and other maternity benefits are becoming increasingly common. But there was no beneficial piece of legislation in the horizon which is intended to achieve the object of doing social justice to women workers employed in factories, mines and plantation.

APPLICABILITY OF THE ACT

The law applies-

(a) to factory, mine or plantation including such establishments belonging to the government or an establishment requiring physical labor, skills or performances.

(b) shops or establishments where more than 10 people are employed or were employed on any day in the preceding twelve months. The state government, with the approval of the central government, after giving a notice of at least two months decides that the provisions of the act may apply to any other establishment.

MATERNITY BENEFIT GRANTED BY ACT

The law is fundamentally present to safeguard the interests of a mother, immediately before and after child birth. In case of infringement of those interests the law also provides the remedies for the employee adversely affected.

The law provides:
1. No woman will be asked to work in an employment for six weeks immediately preceding her delivery or miscarriage.

2. Every woman will be entitled to the maternity benefits in terms of wages as prescribed in the act.

3. A woman shall only be entitled to the maternity benefits under this act only if she has worked for the employer for a period of not less than one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.

4. The maximum number of leaves that a woman is entitled to under the act is 12 weeks.

5. A woman will not be allowed to do such work that can harm her or her child's health during pregnancy.

6. The law provides same benefits to women who have a miscarriage or tubectomy.

7. A woman suffering from illness arising out of pregnancy, delivery, premature birth of child (Miscarriage, medical termination of pregnancy or tubectomy operation) be entitled, in addition to the period of absence allowed to her leave with wages at the rate of maternity benefit for a maximum period of one month.

8. Exception:
An insured woman may be disqualified from receiving maternity benefit if she fails without good cause to attend for or to submit herself to medical examination when so required. She may, however, refuse to be examined by if the doctor or mid wife is not female. If an insured woman is disqualified as above, the disqualification is to be for such number of days as may be decided by the authority authorised by the Corporation, which is the appropriate Regional Office.

PATERNITY LEAVE AND ITS APPLICABILITY

Though it's the mother who actually delivers the child, father plays an equally important role. A father is expected to be emotionally and physically available for both, mother and child, before and after the delivery. Infact, legally accepting and providing two months of paternal leave has resulted in a reduced divorce rate in Sweden.

In India, the Central Government in 1999 by notification under Central Civil Services (Leave) Rule 551 (A) made provisions for paternity leave for a male Central Government employee (including an apprentice and probationer) with less than two surviving children for a period of 15 days to take care of his wife and new born child. He can avail this leave 15 days before or within 6 months from the date of delivery of child. If such leave is not availed within the period, it shall be treated as lapsed. For paternity leave he shall be paid leave salary equal to the pay last drawn immediately before proceeding on leave. Also, the same rule applies when a child is adopted.

While paternity leave is sanctioned for government employees, there isn't any such law that indoctrinates the private sector to make it obligatory. Hence, paternity leave is open to interpretation by individual companies.

Despite there being no legislation, in the case of Chander Mohan Jain Vs N.K.Bagrodia (2009) the New Delhi High Court passed a judgement allowing paternity leave in private schools with Chandra mohan Jain, a private school teacher, getting his deducted salary back as his leaves were recognised as Paternity leaves by the court.

We all know and understand that for a healthy work culture and to get the optimum efficiency out of an employee, an employer must ensure to provide certain basic amenities like a comfortable work place, healthy working hours, giving the employee enough physical and mental rest etc. Being a country where our family is of first and foremost importance for us, an employer needs to keep in mind that having a child is a start to the chapter of family for almost all, hence, it is an utter necessity to provide reasonable amount of maternity as well as paternity leaves. We must not forget that for a vulnerable new mother and her newly born child, father is the most important person to be around.

WILL MATERNITY LEAVE BE GRANTED IN THE SAME MANNER AFTER AMENDMENT IF THE LEAVE IS ALREADY GRANTED?

There was a notification which was put up by the government regarding some queries. The above mentioned question was too answered which said that yes if the employee can enhance maternity benefit as modified by the Maternity Benefit amendment bill, 2016 can be extended to women who are already under maternity leave at the time of enforcement of this amendment. But another query which arises along with this is that whether enhancement of maternity benefit can be extended to those women who have joined after availing 12 weeks of the maternity leave? It was clarified that those women employee who had already availed 12 weeks of maternity leave before enforcement of the maternity benefit(Amendment) act, 2017, i.e., 1st April 2017 shall not be entitled to avail the extended benefit of the 26 weeks leave now.

CRECHE FACILITY

Crèche facility is basically day care services for the children. In the 2017 amendment of the government, under section 11A of the act it was inserted that there should be crèche facility in any establishment having more than fifty employees and the employee shall be allowed to visit the crèche four times a day. The extract from the act is mentioned below:

‘‘11A. (1) Every establishment having fifty or more employees shall have the facility of créche within such distance as may be prescribed, either separately or along with common facilities : Provided that the employer shall allow four visits a day to the creche by the woman, which shall also include the interval for rest allowed to her.

(2) Every establishment shall intimate in writing and electronically to every woman at the time of her initial appointment regarding every benefit available under the Act.’’

 Further, in a notification by the government on 18th may 2017 it added another rule under maternity benefit (mines and circus) act, 1963 which adds that the creche service is to be within 500 meters from the entry of establishment and shall provide with common facilities. The exact extract of the notification is mentioned below as follows:

In the Maternity Benefit (Mines and Circus) Rules, 1963, after rule 6, the following rule shall be inserted, namely:—

“6A. Crèche facility to be near establishment.—every establishment having fifty or more employees shall have the facility of crèche within a distance of five hundred meters from the main entrance of the establishment, either separately or along with common facilities.”

But in the above notification, it is not clear that what all shall be included in common facilities as it is very vague. Something can be a common facility for one but not for others.