The maternity and paternity leave provides protection to mother and father to take time off to take care of their newly born child or newly adoptive child. Since the ancient time women had a strong significance in all the sphere of life and especially in India women are treated as goddess and in current scenario also we refer to them as Laxmi. The law of nature and the will of God has made mothers to be the forbearers of a child.
There are legislations which provides protection to the mothers in the form of maternity benefit but there is no such legislation for the fathers. In the year 1961, the Indian Government pioneered its first legally essential act which provides benefits to the expectant mother during and after her pregnancy for a particular time period. The act was amended several times and the latest amended act comes under the head as “The Maternity Benefit (Amendment) Act, 2017”.
It was amended due to the evolution in society as a result of socio and economic changes. The act extends to the whole of India including the state of Jammu & Kashmir.
Evolution of the Maternity Benefit Act
The act was a result of arguments which were laid down in Bombay Legislative Council. The Act was supported and defended by the Dr. B.R. Ambedkar. He opposed to all the objections to the Act. Dr. B.R. Ambedkar were of the view that the bill should not be confined only to the Bombay Presidency but to the whole of India. He said that the women should be provided with benefits not only during her pre-natal pregnancy but also after the birth of her newly born child. Though there were a few legislations such as Workmen’s Compensation Act, 1923 and the State Fund Insurance Act, 1948 which provided a few benefits to women but were not sufficient.
Bombay is the textile hub for India which has numerous textile industries and a large number of women population working in these industries which led for the bill to be first pioneered in Bombay. The Maternity Benefit Act, 1961 was enacted by the Parliament in the 12th year of Republic of India on 12th December, 1961 as Act no. 53 of 1961. It was enacted as per Article 42 of the Constitution of India which lays down the provision for securing just and humane conditions of work and for maternity relief. It also kept in view all the pre-constitution legislations.
What does the Maternity Benefit (Amendment) Act, 2017 direct?
India is a developing country and our first Maternity Leave Act was established in the year 1961 under the head known as “The Maternity Benefit Act, 1961”. This act ensured women employees a paid leave for 12 weeks after the birth of the child to take care of the newly born child. It was later amended in the year 2017 and the paid leave of 12 weeks was increased to 26 weeks. This change was made in the Act to encourage the women to continue to work because most women after the birth of her child leave work to take care of her newly born or newly adoptive child.
The Maternity Benefit (Amendment) Act, 2017 was passed in the Rajya Sabha in August 2016. On 3rd April, 2017 it was passed by the Lok Sabha and was given Presidential assent.
Applicability of the Act
According to section 2 of the Act, the Act applies to, to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances.
It also provides that nothing contained in this Act shall apply to any factory or other establishment to which the provisions of the Employees’ State Insurance Act, 1948 (84 of 1948), apply for the time being.
Benefits provided by the Act before March 2017
A paid leave to female employees were given for a period of 12 weeks (84 days), out of these 12 weeks, 6 weeks leave was post-natal leave.
In case of a miscarriage or medically approved termination of pregnancy, a worker was entitles to 6 weeks of paid leave.
The female employees were also entitles to a paid leave in case of the complications arising due to pregnancy, premature birth, delivery, miscarriage, tubectomy operation or termination of pregnancy.
Section 12 of the Act stated that it would be unlawful for an employer to discharge or dismiss a female employee to her disadvantage on account of maternity leave.
Benefits provided by the 2017 Act
Any female employee working full time in the above mentioned establishments of the organised sector for a period of more than 80 days in 12 weeks preceding the date of her expected delivery, or the date on which the child is handed over to her in case of adoption or commissioning mother (using a surrogate to bear a child) is entitled to all the benefits given by the act.
Increase in maternity leave duration to 26 weeks:
The period of 12 weeks is substituted with 26 weeks of paid maternity leave of which no more than 8 weeks should precede the date of expected delivery. The remaining 18 weeks can be availed post childbirth.
The 26 weeks paid maternity leave is only mandated for the first two successful pregnancies.
For the third and fourth pregnancy, the female employee will only be entitled to 12 weeks maternity leave of which no more than 6 weeks should precede the expected date of delivery.
Recognition of the rights of an adopting mother and of a commissioning mother:
The act provides a paid maternity leave to women who legally adopts a child below the age of three months or a commissioning mother (using a surrogate to bear a child) for a period of 12 weeks from the date the child is handed over to the adopting mother or commissioning mother.
A “work from home” option:
The act mandated a work from option the female employees bearing a child.
In case where the nature of the work assigned to a woman is of such nature that she may work home, the employer may allow her to do so even after she has availed the maternity benefit for such a period.
Such facility shall be allowed only on such conditions as the employer and the woman may mutually agree or as per the terms of the agreement between the employer and the women.
Mandatory crèche (day care) facilities for every establishment:
According to the act, every establishment having 50 or more employees will have to provide crèche facility and it includes the right of mothers to visit the crèche four times a day and which also includes the interval for rest allowed to her.
The act makes it compulsory for the employers to educate women about the maternity benefits available to them at the time of their appointment.
Non-compliance by the Employer: It’s Effect
Every establishment is required to personally provide in writing as well as electronically all the benefits available under the act to women being employed in the establishment.
If an employer does not comply with the rules regarding the payment of the maternity benefit he/she shall be punished with imprisonment for a minimum period of 3 months which may extend up to 1 year and with a fine of minimum Rs. 2000 not exceeding Rs. 5000.
An employer cannot dismiss a women for taking maternity and cannot serve a termination notice to a women who is on a maternity leave which expires before the maternity leave ends.
An employer cannot change the terms of service to the woman’s inconvenience during her maternity leave.
The employer will be mandated to pay maternity benefit and medical bonus to a woman who is discharged or dismissed during pregnancy.
It is not clear whether the amended act is applicable to establishments with 50 or more women employees or 50 or more employees in total.
Employers are often left with the question that who has to bear the cost of crèche facilities in the establishment and how the facilities is need to be provided.
There is no clarity with respect to the time period up to which the crèche facility should be extended and also regarding the availability, frequency and extent of nursing breaks.
Since the leave period has been increased to 26 weeks, this increase in maternity leave could have an adverse impact on job opportunities for women. This will make the employers hire more male workers than female workers.
There is no clarity related to the provisions in the unorganised sector. Almost 89% of the women are employed in the unorganised sector and it is a disturbing element.
Although, women working in an unorganised sector can avail benefits from the schemes such as the Janani Suraksha Yojana and Indira Gandhi Matritva Sahyog Yojana, they get their benefit only in terms of cash assistance and lack other institutional support provided in the Maternity Benefit Act.
There is a need to bring uniformity in labour law about maternity benefits in India.
There has been no provision provided for paternity leave.
Parental Leave: It’s Effect and Importance
In India, there are no such legislations which provide paternity leave to the male employees in the society. Our society has created the minds of people such as that the men are the breadwinners of the family. The Indian Law on paternity leave is extremely narrow. Our society is of the opinion that taking care of a child is only a mother’s responsibility. We Indians live in a country where family is given utmost importance. For example: today families have started living in nuclear homes but are still not independent because they are dependent on their extended family.
With the advent of socio and economic changes and the evolution of the society, the fathers now want to be physically and emotionally present for both their newly born child or the newly adoptive child and mother. There are no provisions for paternity leave under the Indian Labour Law as well.
Paternity Laws in India
In India, the Central Government in 1999 by notification under Central Civil Services (Leave) Rule 551 (A) made provisions for paternity leave for a male Central Government employee (including an apprentice and probationer) with less than two surviving children for a period of 15 days to take care of his wife and new born child.
Rajeev Satav, Member of Parliament from Maharashtra, has proposed a new bill known as Paternity Benefit Bill in the Lok Sabha for the benefits of the father. The bill was proposed by him after The Maternity Benefit (Amendment) Act, 2017. The bill proposed will put forth similar benefits to adoptive parents.
The Need for Paternity Laws in India
If taking care of a child is equally distributed between the father and the mother it will lead to better psychological health for everyone involved. The child will not only be emotionally and physically attached to only one parent but to both parents.
Women have become hesitant in what work they do because of the judgmental nature of the men in the society. Patriarchy has taken over and is not a ‘natural’ human state.
Paternity leave builds a stigma in the minds of the women that they are not the only ones who have to compromise their work life and take care of the child alone.
The Status of Parental Leave in the World
Lithuania and Hungary- They give a total of 156 weeks parental leave.
Sweden- they give a total 90 days each to both parents i.e. 480 days. They are paid 80% of the salary.
Estonia- the father receives a 2 weeks leave which is paid at 100%. It offers more than a year paid leave to the parents which they can share between them.
Iceland- Both parents are given 3 months each with the child which is paid at 80% each. Both parents can then take another 3 months of leave which they can share is also paid at 80%. Iceland provides a total of 9 months paid parental leave.
These are a few countries (Nordic countries) who are the most generic towards the parental leaves. Bulgaria, Japan, Austria, Slovakia, Latvia, Norway, Germany, Poland, Korea, Canada, Italy France, Germany and many more are the countries who offer parental leave.
Paternity leave is offered by 94 countries in the world to a man and 140 countries offer maternity leave to a woman. It is still a long battle which has to be fought by both father and mother in order to take care of their child. Women have to be a slave of patriarchy and they are not hired by the employees. Men have to be a victim of his masculinity that he only has to be breadwinner of the family. The government needs to understand that taking care of a child is a shared responsibility between both father and mother.
3RD Year BA LLB,
Ramaiah College of Law, Bangalore