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KEY TAKEAWAYS

  • Maternity leave in India is a paid absence leave, which allows employees to look for their infant while they are still working.
  • As India developed, the maternity laws changed with the situation, benefitting more women.
  • There have been many benefitting cases for mothers regarding maternity leaves in the Indian judicial system.
  • The Maternity Benefit Act was amended for betterment of pregnant women and the maternity leave period was increased from 12 week to 26 weeks.
  • The Maternity Benefit Act protects women’s employment and provides women maternity benefit with full paid absence from work.

INTRODUCTION

In India, maternity leave has been changed in light of the contemporary situation, in which women make up the majority of the workforce. Pregnancy is a stage of life that many families anticipate experiencing soon. Many couples make preparations for pregnancy and delivery. Regardless of how happy and wonderful the pregnancy is, it is also a source of anxiety for working women.

India has already made the move to a nuclear family system, making assistance from home difficult. Couples have also relocated from their hometowns for corporate careers in other locales. Starting a family and moving through the pregnancy process is a time that raises a lot of questions.

India is a growing country, and our first Maternity Benefit Act was passed in 1961. This Act guaranteed women employees a 12-week paid maternity leave to care for their newborn. This Act applies to businesses with ten or more employees. The Act covers women who are employed on a contract, full-time, or through agencies.

Maternity Leave in India is a paid leave of absence from work that allows women employees to care for their newborn while still working. The present work situation has been altered, and we now have a large number of female employees. Due to social and economic developments, the Maternity Act was vulnerable to modification. The Maternity Benefit (Amendment) Bill was introduced in 2017 to amend the Maternity Benefit Act, 1961.

Some salient features of the Maternity Benefit Act:

Requirements

A woman employee must have worked for 80 days at the current establishment in the previous 12 months to be qualified under this Act.

Payment

The average daily pay for the time of absence is used to compute paid leave.

Period extension

The Maternity (Amendment) Bill of 2017 increased the previous 12-week maternity leave to 26 weeks. The pregnant employee might divide her leave into two categories: post-delivery and pre-delivery. Before the delivery, you can take up to 8 weeks of leave, with the remainder once the baby is born. The maternity leave granted to mothers expecting their third child is 12 weeks.

Maternity leave Adoptive mothers

The adoptive mother is entitled to a 12-week leave under the legislation. This leave begins on the day of adoption and is valid for babies under the age of three months.

Maternity law for commissioning moms

Many couples who were unable to conceive naturally have found comfort and joy because of technological advancements. The biological mother who donates her egg to generate an embryo, which is later implanted in another woman, is entitled to a 12-week maternity leave under local legislation.

For tubectomy during pregnancy

In the event of tubectomy, a woman who produces the required documents can take two weeks off immediately following the tubectomy procedure.

Critical illness post-maternity

Postpartum depression is a serious condition that occurs after the birth of a child.

Pregnancy is a difficult process that can sometimes be life-threatening. Women who are suffering from severe conditions such as pre-mature birth, miscarriage, or medical termination of pregnancy can get a one-month benefit under the Maternity Leave Amendment Bill 2017.

Leave for public sector employees

For the first two live-born infants, female government servants are entitled to 180 days of paid leave.

Leave for Private sector employees

Female employees in the private sector need to check with their HR department about maternity leave arrangements. Various firms have different leave and payment policies.

The Maternity Benefit in India Act, 2017

Compensation and benefits:

  1. Maternity leave is paid at the rate of the average daily wage for the duration of the absence.
  2. In addition to the 26 weeks of paid vacation and 12 weeks of paid leave for a mother of two, a medical bonus of Rs. 3500 is available.
  3. The National Food Security Act of 2013 provides an additional benefit of Rs. 6000/- to pregnant women and nursing moms.

Norms Under The Maternity Leave:

  1. The Act states that the employer should not give a pregnant employee difficult tasks, including long-standing working hours, ten weeks before the delivery, such that it might affect both mother and child.
  2. The employer should ensure the health and safety of the female employer and mandates that she should not be involved in any work six weeks following the delivery as well as miscarriage.
  3. The law also states that the employer cannot dismiss or discharge a female employer during the maternity leave period.
  4. In businesses with more over 50 employees, the employer is required to offer a crèche. When the female employee returns to work after maternity leave, she will be able to use the crèche. In addition, the Act allows a female employee to attend the crèche four times during her regular working hours, including her usual rest periods.
  5. There are serious consequences if an employer fails to comply with the Maternity Act. A punishment of Rs. 5000/- or a year's imprisonment, or both, is imposed on an employer who refuses to comply with the Act.

LANDMARK CASES

Dr. Mandeep Kaur v/s UOI

FACTS

The Petitioner worked as a contract medical officer at a state-run Ex-Servicemen Contributary Health Scheme (ECHS) facility. According to the Maternity Benefit Act of 1961, she applied for maternity leave beginning on February 11, 2018, for a period of 180 days. The ECHS clinic denied her request, claiming that her employment contract with the clinic did not include a clause allowing her to take "maternity leave."

JUDGEMENT

According to Section 2 of the Maternity Benefit Act of 1961, benefits are available to any company with ten or more employees, among other things.

The Court went on to say that Section 2 of the Maternity Benefit Act, 1961, covered the ECHS clinic in issue and that the petitioner's request for benefits under the Act could not be denied.

While deciding whether the petitioner could still receive benefits under the Act as a contractual employee, the Court cited the Supreme Court case of Municipal Corporation of Delhi v/s Female Workers and Anr., which have explicitly mandated that women employees, whether permanent, casual, or contractual, be entitled to maternity leave.

While discussing the nature of benefits available to women under the Maternity Benefit Act of 1961, the Court also set out the amended Section 5 of the Act, which increased the length of maternity leave available to a woman from 12 to 26 weeks and also provided a "work from home" option that could be exercised after the 26-week leave period had expired, with mutual consultation with the employer. Because the petition was submitted after Section 5 was modified, the Court ordered the state to provide maternity leave to the Petitioner in accordance with the amended legislation.

Tanuja Tolia v. State of Uttarakhand

FACTS

A female Ayurvedic doctor who was hired on a contractual basis by the State Medical and Health Services (SMHS) of Uttarakhand brought a petition. Her job contract had been regularly renewed, despite the fact that it had originally been for one year. She requested maternity leave, which she received. She opted not to return when her maternity leave expired and sought for Child Care Leave (CCL), which was refused since she was a contractual employee and hence not eligible to CCLs. The application for CCL was filed in accordance with a Government Order (GO), which indicated that a CCL of 730 days was available only to permanent workers and not to contractual employees, and this served as the basis for her employer's rejection to award her CCL.

The case was subsequently sent to the Division Bench of the High Court of Uttarakhand, where the State claimed that a contractual employee's term of work is just a year, and that given the circumstances, granting a CCL of 730 days was practically impossible. If the State did so, it would be obligated to keep renewing the contract indefinitely. The Court agreed with the State's argument and determined that there were contradictory opinions among the courts, thus the case was transferred to a bigger Bench.

JUDGMENT

While deciding the legal matter, the Court looked into the history of maternity and childcare leave. It was noted that women and children's rights are intertwined. Many times, when a woman attempts to defend her rights (such as maternity leave and child care leave), she is actually seeking to enforce the right of a kid. The Universal Declaration of Human Rights echoes this sentiment, stating explicitly that motherhood and infancy are entitled to particular care and aid. All children, whether born in or out of wedlock, are entitled to the same level of social protection.

The Convention on the Elimination of Discrimination Against Women (CEDAW) goes even further; urging all governments to take necessary steps to provide paid maternity leave to all women. India is a signatory to both agreements and, as such, must incorporate them into its domestic legislation. The protection of women and children is likewise included in our Constitution's Directive Principles of State Policy.

In light of the foregoing, the GO was examined, which only applied to permanent employees and excluded contractual workers. The Court stated that the kid was the true beneficiary of CCL, and that the mother or father receiving CCL was only a tool for enforcing the child's rights, and that no distinction should be made between who is entitled to CCL because the ultimate beneficiary stays the same.

However, the Court recognised the practical problem of granting a CCL of 730 days to a contractual employee whose term of employment is only 365 days, and thus agreed with the Guwahati High Court, which had decided in a separate decision that in the case of a contractual employment, CCL should be granted on a pro rata basis, but since the Guwahati High Court had failed to establish how the “pro rata” should be calculated, the Court agreed with the Guwahati High Court.

The Court has recently decided that an employee whose whole employment is for one year, and provided he or she meets other GO criteria, such as having two children under the age of 18, would be entitled to CCL, which equates to a paid leave of 31 days.

Conclusion

Pregnancy is a natural process, and the intellect or working potential of women employees will not disappear to the phase. As a developing nation, where we promote education for the girl child, maternity benefits should be considered seriously and implemented in all organizations with total support from the government. For instance, recently, in a hearing in the Supreme Court, the petitioner requested maternity leave after the birth of her first biological kid. Her spouse had two children from a previous marriage, according to her attorney. However, after reviewing her file, the Department decided to revoke it, claiming that because she already had two surviving children and had taken Child Care Leave on that basis, she was no longer eligible. The High Court of Punjab & Haryana, which affirmed the Central Authoritative Tribunal's ruling, rejected the appeals for maternity leave.

The case was scheduled to be heard by a panel of Justices D.Y. Chandrachud and M.R. Shah, who consented to hear the SLP filed against the Punjab and Haryana High Court's ruling. “It’s an interesting question of law, we will hear this”. Justice Chandrachud said. The Bench has issued a notice in the case, but the High Court has not granted the petitioner's request for a stay.


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