Maternity Leave in India: A Comprehensive Overview of Laws, Benefits, and Challenges
Team SoOLEGAL 20 Oct 2023

Maternity Leave in India: A Comprehensive Overview of Laws, Benefits, and Challenges


Maternity leave is a critical component of labor policies in any country. It allows women to take a break from work following the birth of a child while retaining their jobs and receiving paid leave. In India, maternity leave has undergone significant changes over the years, with the Maternity Benefit Act of 2017 expanding the period to 26 weeks. This article delves into the details of maternity leave in India, exploring the laws, benefits, and challenges associated with it.

Maternity Leave in India

Maternity leave in India is a paid leave of absence from work designed to support female employees in taking care of their newborn children while preserving their employment status. The Maternity Benefit Act of 2017 introduced a significant shift in this regard by extending the maternity leave period from 12 weeks to 26 weeks. This act applies to both organized and unorganized sectors, encompassing enterprises and factories with ten or more employees.

Under this act, working women who are pregnant or nursing are entitled to fully paid leave during which they can care for themselves and their child. However, there are specific criteria that female employees must meet to validate their maternity leave claims.


Laws Relating to Maternity Leave

1. Indian Constitution: The directive principles of state policy in the Indian Constitution state that "the State shall make provision for securing just and humane conditions of work and for maternity relief."

2. Maternity Benefit Act of 1961: This act allows diligent working women to take maternity leave for up to three months, during which they are entitled to receive payment equal to the rate of their average daily wage for the period of their actual absence.

3. Employees' State Insurance Act, 1948 (ESIA) and the Central Civil Services Rules, 1972: These acts provide social insurance and protection for workers in the organized sector, including maternity benefits in cases of miscarriage or pregnancy-related emergencies.

4. International Convention: In 2004, the International Labour Organization (ILO) adopted a resolution promoting equal opportunities for women and recommended 14 weeks of maternity leave. India, as an ILO member, recognized the need to improve its maternity leave policies and enacted an amendment in 2017, known as the Maternity Amendment Bill 2017.


Other Alternative Laws Providing Maternity Benefits

In addition to the Maternity Benefits Act of 1961, there are various statutes that address maternity benefits and the well-being of female workers in India. These laws may not exclusively focus on maternity rights but still offer insights into women's rights during and after pregnancy. Some of these laws include:


1. Employer State Insurance Act 1948: This act contains provisions to safeguard the health of female workers and provides periodical payments in case of miscarriage, sickness, or other pregnancy-related issues.

2. The Maternity Benefit Mines and Circus Rules, 1963: These rules prescribe procedures and compliance requirements for employers in establishments such as mines and circuses when dealing with the maternity health of their employees.

3. Central Civil Service Rules of 1972: This law is applicable to government servants and provides maternity leave of 135 days for female government servants. It also includes provisions for maternity leave in case of a miscarriage.

4. Mines Act 1952: This act offers maternity leave for women involved in the management, supervision, or control of mines. It allows for 12 weeks of maternity leave.

5. The Factory Act 1948: Under this act, women working in factories are entitled to 12 weeks of maternity leave. It also encourages employers to create a family-friendly environment for women workers.

6. The Maternity Leave Incentive Scheme, 2018: This scheme aims to provide incentives to employers who offer maternity benefits, including 26 weeks of paid leave. It is still in the draft stage, awaiting consultation and approval.


The Maternity Benefit Bill 2017

The Maternity Benefit Bill of 2017 introduced several significant changes in the maternity leave policies of India. One of the most notable changes was the extension of maternity leave from 12 weeks to 26 weeks. However, it is essential to note that if a woman has more than two children, she is entitled to only 12 weeks of maternity leave, along with an additional six weeks of paternity leave, resulting in a total of 18 weeks.

Another important feature of this bill is the provision for adoption leave, which can be sanctioned for up to 12 weeks from the time a child's custody is obtained. The bill also allows for 12 weeks of maternity leave for commissioning mothers, who conceive through surrogacy.

The bill further stipulates that a working woman who has taken maternity leave must receive at least 80 days' pay within the 12 months before her expected delivery date. The amount payable is calculated based on the average daily wage of the worker. In addition to the 12-week salary, the woman is entitled to a bonus of Rs 3,500. If the employer does not provide medical care, an additional bonus of Rs 1,000 is granted.

For female civil servants, the bill allows for 180 days of maternity leave for their first two children. In the case of a miscarriage, nursing women are entitled to 26 weeks of leave.


Landmark Judgement

One significant landmark judgment that has shaped the understanding of maternity benefits in India is the case of Mrs. Bharti Gupta vs. Rail India Technica W.P(C) No. 4798/2003. In this case, the court held that maternity benefits were laid down in the Maternity Benefit Act, which is a social and benevolent law designed to include various establishments within its purview. The judgment emphasized that even entities like RITES, which are instruments of the State, must follow the provisions of the Act and do not have leverage to be exempted from their responsibilities.



In conclusion, maternity leave holds a pivotal role in labor policies, providing crucial support for women during the post-childbirth phase while preserving their employment. India has witnessed significant changes in maternity leave provisions, with the Maternity Benefit Act of 2017 extending the leave period to 26 weeks, encompassing both organized and unorganized sectors. A multitude of laws, including the Indian Constitution, the Maternity Benefit Act of 1961, and international conventions, contribute to shaping maternity leave rights in the country.

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