MATERNITY LEAVE IN INDIA
1. Context
Last week, the Supreme Court ruled that adoptive mothers could avail themselves of 12 weeks of paid maternity leave regardless of the age of their children at the time of adoption. Striking down Section 60(4) of the Social Security Code, 2020 (previously Section 5(4) of the Maternity Benefit Act, 1961), which limited this benefit only to mothers who adopted children under the age of three months, the Court said that an adoptive mother had the same rights and obligations towards the child as a biological mother.
2. Maternity leave in India
- The provision of statutory maternity benefits for working women in India traces its origins to the colonial period. The Bombay Maternity Benefit Act of 1929 was among the earliest laws, extending such benefits to women employed in factories.
- Over time, similar legislation was introduced in other regions prior to Independence. Eventually, in 1961, Parliament enacted the Maternity Benefit Act, which granted 12 weeks of paid maternity leave to working women nationwide.
- A significant reform came in 2017 with the Maternity Benefit (Amendment) Act. This amendment increased paid maternity leave for biological mothers to 26 weeks and, for the first time, included provisions for adoptive and surrogate mothers.
- Under Section 5(4), women who legally adopt a child below the age of three months, as well as commissioning mothers, are eligible for 12 weeks of maternity leave starting from the date the child is handed over to them
3. Drawbacks of the above law
- While the Maternity Benefit Act, 1961 and its 2017 amendment marked a progressive step for working women, the framework has several structural and practical limitations that affect its effectiveness.
- One of the most significant drawbacks is that the law places the entire financial burden of paid maternity leave on employers rather than the state.
- This increases the cost of hiring women, especially in the private sector, and can unintentionally discourage employers from recruiting or promoting women of childbearing age. In this sense, a well-intentioned welfare measure may contribute to gender discrimination in hiring practices.
- Another major limitation is its restricted coverage. The law applies mainly to women working in the formal sector, which constitutes only a small fraction of India’s workforce.
- A vast majority of women employed in the informal sector—such as domestic workers, agricultural labourers, and gig workers—remain outside its scope, thereby excluding those who are often most vulnerable.
- The 2017 amendment to the Maternity Benefit (Amendment) Act, 2017 extended leave to 26 weeks, which is beneficial for child and maternal health, but it has also raised concerns among employers regarding productivity and workforce continuity.
- Smaller firms, in particular, may struggle to manage prolonged employee absence without adequate support or incentives from the government.
- The provision for adoptive and surrogate mothers, while a positive inclusion, is limited in scope.
- It applies only when the adopted child is below three months of age, excluding many adoptive parents who take in older infants or children. This creates an inconsistency in how caregiving responsibilities are recognized.
- Additionally, the law does not adequately address paternity leave or shared parental responsibilities. By focusing almost entirely on mothers, it reinforces traditional gender roles and places the burden of childcare primarily on women, which can further affect their long-term career progression.
- There are also implementation challenges. Awareness about entitlements remains low among workers, and compliance is uneven, particularly in smaller establishments. Monitoring mechanisms are not always robust, leading to gaps between legal provisions and actual practice
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Supreme Court on Motherhood
The Court emphasized that motherhood should not be confined to a purely biological perspective. It recognized adoption as an integral aspect of reproductive autonomy. Highlighting the importance of leave, the Court observed that this period is essential for building a strong emotional connection between the mother and the child. It further pointed out that children raised in institutional settings often exhibit higher levels of stress hormones compared to those brought up in family environments, underscoring the need for adequate paid leave even in cases involving older adopted children
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4. Maternity Benefit Act 1961
- The Maternity Benefit Act was originally passed by Parliament on December 12, 1961, to regulate the employment of women in “certain establishments” for the period before and after childbirth and “to provide for maternity benefit and certain other benefits.”
- Originally it applied to every establishment “being a factory, mine or plantation” and later in 1973, it was extended to “any such establishment belonging to Government” and “every establishment where persons are employed for the exhibition of equestrian, acrobatic and other performances.”
- It repealed the Mines Maternity Benefit Act, 1941 and Maternity Benefit Act, 1929
- Section 4 of the 1961 Act prohibited the employment of or work by women during a certain period and under sub-section (1) stated, “No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.”
- The right to paid maternity leaves was also given under Section 5 of the 1961 Act, although the period of such leave could not exceed twelve weeks, “that is to say, six weeks up to and including the day of her delivery and six weeks immediately following that day.”
- Additionally, no woman could be allowed to avail maternity benefits if she had not worked in the establishment for at least “one hundred and sixty days in the twelve months immediately preceding the date of her expected delivery.”
- These benefits would be allowed without dismissing the female worker from service or reduction of wages
- Violating provisions of the Act could result in three months’ punishment, with or without a fine
- On March 9, 2017, the Maternity Benefits (Amendment) Act 2017, was passed by Parliament, which brought about key changes to the original Act
5. Way Forward
The Court also urged the Union government to consider introducing a comprehensive legal provision that formally recognises paternity leave for all fathers, whether biological or adoptive. It observed that India’s existing legal framework does not sufficiently acknowledge the role of fathers in childcare and stressed the need to promote shared parenting responsibilities. At present, only male government employees are eligible for 15 days of paternity leave in cases of childbirth or adoption, while in the private sector, such leave is largely governed by individual company policies
Source: The Hindu
