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Maternity Leave: Step towards gender equality



Are you aware about the rights of your pregnant female employees? Are you in compliance with the maternity benefit law?


The Maternity Benefit Act, 1961 (“Act”) provides that every female staff/employee who has been employed in the company for a period of 80 days in the 12 months immediately preceding the date of her expected delivery will be entitled to maternity leave. 


Such an employee shall be entitled to a paid maternity leave of (i) 26 weeks; or (ii) 12 weeks, if she has 2 or more surviving children; or (iii) 6 weeks, in case she suffers a miscarriage; or (iv) if she legally adopts a child below the age of 3 months or is a commissioning mother, 12 weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be. Provided however, the leave period for such an employee cannot begin prior to 8 weeks of the expected date of delivery unless she has 2 or more surviving children, in which case the leave period cannot begin prior to 6 weeks of the expected date of delivery. 


During the maternity leave, a female employee is entitled to payment at the rate of her average daily wage i.e., the average wages payable to her during the period of immediately preceding 3 months from the date of her maternity leave. 


Wages" means all remuneration paid or payable to a woman, if the terms of the contract of employment were fulfilled by her and includes (1) such allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to, and (2) incentive bonus; but does not include (i) any bonus other than incentive bonus; (ii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and (iii) any gratuity payable on the termination of service. It can therefore be inferred that a female employee will be entitled to the last drawn salary by her prior to going on maternity leave which shall include the basic salary and the allowances. However, there is no concrete case law on the subject matter and the interpretation has been drawn on plain reading of the law.


Furthermore, the Act states that it is unlawful for an employer to discharge or dismiss the female employee during or on account of her absence due to maternity leave or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service. In the event of discharge or dismissal of a woman at any time during her pregnancy, if the woman would have been entitled to maternity benefit or medical bonus, such discharge or dismissal shall not have the effect of depriving her of the maternity benefit or medical bonus and she will be bestowed the same.


Upon reading of the applicable law, it can be concluded that courts consider the Act to be a social welfare legislation and have generally taken the stance of ensuring that maternity benefits are paid to pregnant women employees. In fact, recently in the case of Smt. Chanda Keswani v. State of Rajasthan, the High Court of Rajasthan observed that a biological mother and a mother who opted for surrogacy are to be viewed on the same footing in granting maternity benefits under the Act. Right to life enshrined in Article 21 of the Constitution includes both, the right to motherhood as well as the right of every child to full development. 


This need to protect the intent and objects of the Act has been substantiated by Indian courts in several judgements. For instance, the High Court of Orissa in the case of Swornalata Dash v. State of Odisha & ors. observed that all female employees are entitled to maternity leave. It is a blanket legislation applicable to all females irrespective of the expressed applicability of the Act to a particular institution. The Court recognized maternity leave as a basic right and fundamental entitlement of female employees and technical grounds cannot serve as a reason for its denial. The Court categorically stated that maternity leave cannot be compared or equated to other kinds of leaves to which an employee is entitled. Limiting maternity leave would be a violation of right to life and dignity of women employees which is guaranteed under Article 21 of the Constitution. Similarly, the High Court of Rajasthan in the case of Gayatri v. Maharaja Ganga Singh University & ors observed that while every educational institution has its own rules and regulations regarding attendance, absence by a female on account of pregnancy cannot act as a hindrance in the female student’s pursuing of the educational course. 


In conclusion, it is important that every employer confers maternity leave to an eligible pregnant female employee in compliance with the Act to ensure that it does not deny such pregnant female employee’s fundamental right. 



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