The Right to Maternity Benefit

Note that the prohibition runs both ways. Sub-section (1) binds the employer and sub-section (2) binds the woman. This is a health provision, not a right she may waive.

Section 59(3), arduous work. Without prejudice to section 62, no pregnant woman shall, on a request being made by her, be required by her employer to do any work which is of an arduous nature, or which involves long hours of standing, or which is in any way likely to interfere with her pregnancy or the normal development of the foetus, or likely to cause her miscarriage or otherwise adversely affect her health.

Section 59(4), when that protection operates. During:

• (a) the period of one month immediately preceding the period of six weeks before the date of her expected delivery; and
• (b) any part of that period of six weeks for which she does not take leave of absence under section 62.

The Explanation defines "any work of arduous nature" as work which involves or requires strenuous effort, or is difficult and tiring in nature.

Two things about section 59(3) are commonly stated wrongly. The protection operates on a request being made by her; it is not automatic. And the period in sub-section (4)(a) is not "one month before delivery": it is the month preceding the six weeks before the expected delivery, so it is roughly the tenth week before.

Section 60: the right, the rate and the length

Section 60(1), the entitlement and the rate. Every woman is entitled to, and her employer is liable for, payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is the period immediately preceding the day of her delivery and any period immediately following that day.

The Explanation defines average daily wage as the average of the woman's wages payable for the days on which she has worked during the three calendar months immediately preceding the date from which she absents herself on account of maternity, subject to the minimum rate of wage fixed or revised under the Code on Wages 2019.

That floor matters. However low the three month average works out, the benefit cannot fall below the applicable minimum wage.

Section 60(2), the qualifying period. No woman is entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims it for not less than eighty days in the twelve months immediately preceding the date of her expected delivery.

The Explanation to sub-section (2) provides that in calculating those eighty days, the days actually worked, the days she was laid off, and days that were holidays declared under any law to be holidays with wages, in that twelve month period, are all taken into account.

Section 60(3), the maximum. The maximum period of maternity benefit is twenty-six weeks, of which not more than eight weeks may precede the expected date of delivery.

Three provisos, and all three get examined:

1. a woman having two or more surviving children is entitled to a maximum of twelve weeks, of which not more than six weeks may precede the expected date of delivery;
2. where a woman dies during this period, maternity benefit is payable only for the days up to and including the day of her death;
3. where a woman, having been delivered of a child, dies during her delivery or during the period immediately following it for which she is entitled to the benefit, leaving the child, the employer is liable for the maternity benefit for that entire period; but if the child also dies during that period, then only for the days up to and including the date of the child's death.

The Explanation provides that for this sub-section "child" includes a stillborn child.

Section 60(4), adoption and surrogacy. A woman who legally adopts a child below the age of three months, or a commissioning mother, is entitled to maternity benefit for twelve weeks from the date the child is handed over to her.

Section 60(5), work from home. Where the work assigned to a woman is of such a nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit, for such period and on such conditions as the employer and the woman mutually agree.

Section 60(5) is permissive on both sides. It is not a right to work from home and it is not a power to require it. It operates only after the benefit has been taken, and only by agreement.

Section 61: continuance where the insurance Chapter arrives

Every woman entitled to maternity benefit under this Chapter shall, notwithstanding the application of Chapter IV to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under section 32.

This is a bridging provision and it prevents a gap. If an establishment becomes covered by the employees' state insurance scheme, maternity benefit under that scheme requires the woman to satisfy its own contribution conditions, which takes time. Section 61 keeps her Chapter VI entitlement alive against her employer until she qualifies under section 32. Read it with section 41(7)(b), which bars her from claiming under Chapter VI once she is eligible under Chapter IV, and the two fit exactly: no gap, and no double payment.

Section 62: notice, payment and the effect of not giving notice

Section 62(1), the notice. A woman entitled to maternity benefit may give notice in writing to her employer, in the form prescribed by the Central Government, stating that her maternity benefit and any other amount due may be paid to her or to a person she nominates in the notice, and that she will not work in any establishment during the period for which she receives it.

Section 62(2), the date. In the case of a pregnant woman the notice shall state the date from which she will be absent, not being a date earlier than eight weeks from the date of her expected delivery.

Section 62(3), late notice. A woman who has not given notice while pregnant may give it as soon as possible after her delivery.

Section 62(4), the employer's duty. On receipt of the notice the employer shall permit her to absent herself during the period for which she receives the benefit.

Section 62(5), when the money is paid. The amount for the period preceding the expected date of delivery is paid in advance, on production of prescribed proof of pregnancy. The amount due for the subsequent period is paid within forty-eight hours of production of prescribed proof that she has been delivered of a child.

Section 62(6), the saving. This is the important one. Failure to give notice shall not disentitle a woman to maternity benefit or any other amount under the Chapter if she is otherwise entitled, and in such a case an Inspector-cum-Facilitator may, of his own motion or on her application, order payment within a period specified in the order.

Section 62(6) is the answer to the commonest problem question in this Chapter. The notice is a machinery provision, not a condition of entitlement. An employer who says "she never gave notice" has no defence.

Section 63: death before payment

If a woman entitled to maternity benefit or any other amount under the Chapter dies before receiving it, or where the employer is liable under the second proviso to section 60(3), the employer shall pay the benefit or amount to the person nominated by her in the notice given under section 62, and if there is no such nominee, to her legal representative.

The benefit follows the work, not the label

The leading case on Chapter VI's predecessor answers the question employers most often raise: does a casual or daily wage woman get maternity benefit at all?

Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274.

Facts. Women engaged by the Municipal Corporation of Delhi on the muster roll, on daily wages, did heavy work on construction and road maintenance, including digging trenches. Maternity leave was given to regular female employees but refused to these women because their services had not been regularised. Their union took up their case, and the question whether muster roll women should be given maternity benefit was referred to the Industrial Tribunal, which decided in their favour. The Corporation challenged that award.

Held. The Special Leave Petition was dismissed and the award upheld. There is nothing in the Maternity Benefit Act which confines its benefits to regular employees and denies them to women engaged casually or on a daily wage basis. Article 42 of the Constitution, which speaks of just and humane conditions of work and of maternity relief, though not itself enforceable, is available for testing the legal efficacy of the action complained of. The principles in Article 11 of the Convention on the Elimination of All Forms of Discrimination against Women are to be read into the contract of service between the Corporation and its muster roll women, and so read those women become entitled to all the benefits of the Act.

Why it matters here. It is the authority that maternity benefit follows the work and not the form of the engagement, and it is the case to cite whenever a problem puts a pregnant woman on casual, daily wage, muster roll or temporary terms. Note the statute: it was decided under the Maternity Benefit Act 1961, repealed by item 5 of section 164(1) of this Code. The reasoning carries over because section 60(1) of the Code says "every woman" without qualification, and the qualifying condition in section 60(2) is expressed in days actually worked, not in the status of the appointment. Say so when you cite it.

A worked example

Priya works at a food processing unit. She has worked ninety days in the twelve months before her expected delivery. Her wages for the days worked in the three calendar months before she stops average 500 rupees a day. She has no other children.

Is she qualified? Yes. Section 60(2) requires not less than eighty days actually worked in the twelve months immediately preceding the expected date of delivery, and days laid off and statutory paid holidays count towards it.

How long may she take? Up to twenty-six weeks, of which not more than eight weeks may fall before the expected date of delivery: section 60(3).

At what rate? The average daily wage, that is 500 rupees, subject to the floor of the minimum rate of wage fixed or revised under the Code on Wages 2019.

When is she paid? The pre-delivery portion in advance on prescribed proof of pregnancy; the rest within forty-eight hours of prescribed proof that she has been delivered of a child: section 62(5).

She forgot to give notice. Is she out? No. Section 62(6) provides that failure to give notice does not disentitle her, and an Inspector-cum-Facilitator may order payment of his own motion or on her application.

Change the facts: Priya already has two surviving children. The first proviso to section 60(3) caps her at twelve weeks, of which not more than six weeks may precede the expected date of delivery.

Change them again: she has a miscarriage in the twentieth week. She may not work, and may not be employed, for the six weeks immediately following it: section 59(1) and (2). Her leave with wages at the rate of maternity benefit for that period comes from section 65(1), taken in the next chapter.

She is engaged on the muster roll on daily wages and the employer says the Chapter is for regular employees only. Following Municipal Corporation of Delhi v. Female Workers (Muster Roll), that is not the law. Section 60(1) says "every woman", and section 60(2) asks only how many days she actually worked.

She dies in childbirth, leaving the child alive. By the third proviso to section 60(3) the employer is liable for maternity benefit for that entire period. Had the child also died within the period, liability would run only to the date of the child's death. The money is paid to her nominee under section 62, failing which to her legal representative: section 63.

What this does NOT mean

Twenty-six weeks is not available to every woman. A woman with two or more surviving children is limited to twelve weeks by the first proviso to section 60(3).

The eighty days need not be continuous. Section 60(2) asks that she has "actually worked" for not less than eighty days in the twelve months, and the Explanation adds lay-off days and statutory paid holidays.

Notice is not a condition of entitlement. Section 62(6) says so in terms.

Section 59(3) is not automatic. The protection against arduous work operates "on a request being made by her".

A commissioning mother and an adopting mother do not get twenty-six weeks. Section 60(4) gives twelve weeks from the date the child is handed over, and the adoption must be of a child below three months.

Section 61 does not give a double benefit. It keeps the Chapter VI entitlement alive until the woman qualifies under section 32, and section 41(7)(b) then bars the Chapter VI claim.

Limits and criticism

The employer pays, so the employer has a reason not to hire. Twenty-six weeks of wages is a heavy cost on a small establishment, and there is no fund and no contribution behind it. This is the standard criticism of Chapter VI and it deserves a paragraph in any essay on it.

The two child limit is blunt. A woman with two surviving children gets less than half the leave, whatever her circumstances.

Adoption gets twelve weeks and only for a child under three months. A woman adopting a four month old child gets nothing under section 60(4).

Section 60(4) says nothing about the surrogate herself, as distinct from the commissioning mother.

Section 60(5) leaves working from home entirely to agreement, so it adds nothing a willing employer could not already do.

Quick revision

• Section 59: no employment and no work for six weeks after delivery, miscarriage or medical termination of pregnancy, binding on both employer and woman. On her request, no arduous work, long standing, or work likely to interfere with the pregnancy, during the month preceding the six weeks before expected delivery, and any part of those six weeks she does not take off.
• Section 60(1): average daily wage for the period of actual absence, computed over the three calendar months before she absents herself, subject to the minimum wage under the Code on Wages 2019.
• Section 60(2): eighty days actually worked in the twelve months before the expected date of delivery, counting lay-off days and statutory paid holidays.
• Section 60(3): twenty-six weeks, of which not more than eight before the expected date. Two or more surviving children: twelve weeks, not more than six before. Death of the woman: up to and including the day of death. Death after delivery leaving the child: the entire period, or to the child's death if the child also dies. "Child" includes a stillborn child.
• Section 60(4): twelve weeks for a woman legally adopting a child below three months, or a commissioning mother, from the date the child is handed over.
• Section 61: entitlement continues despite Chapter IV applying, until she qualifies under section 32.
• Section 62: notice in writing; a pregnant woman's date not earlier than eight weeks before expected delivery; late notice permitted after delivery; employer shall permit absence; pre-delivery amount in advance, the rest within forty-eight hours of proof of delivery; failure to give notice does not disentitle, and an Inspector-cum-Facilitator may order payment.
• Section 63: on death before receipt, payment to the nominee named in the section 62 notice, else to the legal representative.

Test yourself

1. State the qualifying condition for maternity benefit and what counts towards it. The woman must have actually worked in an establishment of the employer from whom she claims it for not less than eighty days in the twelve months immediately preceding her expected date of delivery: section 60(2). Days actually worked, days she was laid off, and days that were holidays declared under any law to be holidays with wages all count.

2. For how long is maternity benefit payable, and how much of it may fall before delivery? A maximum of twenty-six weeks, of which not more than eight weeks may precede the expected date of delivery: section 60(3). For a woman with two or more surviving children the maximum is twelve weeks, of which not more than six may precede.

3. A woman gave no notice under section 62. Can the employer refuse to pay? No. Section 62(6) provides that failure to give notice does not disentitle her if she is otherwise entitled, and an Inspector-cum-Facilitator may, of his own motion or on her application, order payment within a specified period.

4. What is a commissioning mother entitled to? Maternity benefit for twelve weeks from the date the child is handed over to her: section 60(4).

5. A woman dies in childbirth and the child survives. What is the employer liable for? By the third proviso to section 60(3), maternity benefit for that entire period. If the child also dies within the period, liability runs only to the days up to and including the date of the child's death.

6. Does the Chapter apply to a woman on the muster roll on daily wages? Yes. Section 60(1) speaks of "every woman" and section 60(2) asks only how many days she actually worked. That is also the effect of Municipal Corporation of Delhi v. Female Workers (Muster Roll), decided under the Maternity Benefit Act 1961, which held there is nothing in that Act entitling only regular employees to the benefit and denying it to those engaged casually or on a daily wage basis.

7. What does section 61 do? It keeps a woman's entitlement under Chapter VI alive, notwithstanding that Chapter IV has come to apply to her establishment, until she becomes qualified to claim maternity benefit under section 32, so that no gap opens between the two schemes.