COMPARITIVE ANALYSIS OF MATERNITY BENEFITS IN INDIA BY - RIDHYA MAHAJAN & SUHANI MADAN

COMPARITIVE ANALYSIS OF MATERNITY BENEFITS IN INDIA

AUTHORED BY - RIDHYA MAHAJAN

& SUHANI MADAN

3rd year BA LLB, University of Petroleum & Energy Studies

ABSTRACT

Women and men are on equal footing in today's society, and they make up a sizeable portion of the labour force. But it's also important to recognise that there are many factors contributing to the low rates of female labour force participation, including social and economic problems that exist at both the micro- and macroeconomic levels. Today, one-third of pregnant women work, and they encounter challenges that force them to overcome health- related problems. The maternity benefit programmes truly help to safeguard the mother's and her child's lives in a healthy manner and aid in her upkeep through advantages like paid time off, earnings, and incentives. She is able to work from home and receive additional time if required. The employer and employee have mutually agreed to it. This will make it easier for her to care for her unborn child both during and after the pregnancy. This study aims to understand specifically how maternity benefit plans offer facilities to women and how they differ from those in other nations. This essay primarily examines the maternity benefits offered in India in light of the previous and new codes.

Keywords- social & economic problems, incentives, maternity benefit, labour force participation

INTRODUCTION

Every working woman is qualified to file for maternity benefits. In order to help women who are expecting a child, have already given birth to a child, or have adopted a child adjust to the changes and new responsibilities in their lives, the term "maternity benefit" is used and it refers to paid time off from work as well as any other benefit. Given that only women are biologically able to have children and that they are traditionally held accountable for their care and upbringing, it is the state's responsibility to ensure that women have access to maternity benefits such as paid leave as society gradually moves towards a fairer structure. Gender parity[1] is achieved as a result. By extending maternity benefits, more women are encouraged to participate in the workforce.

It aids in lowering the rate of baby and mother mortality. Additionally, the child's physical and mental development is enhanced, and the mother has less stress. It also makes financial sense because paid maternity leave increases the possibility that women will return to the workforce, acts as a powerful tool for employee retention, and saves money on training costs. According to a World Bank report[2], women's involvement in the labour force is declining in India, whereas it is increasing in industrialised nations like Sweden, where it is 88% of the total population. India is far behind and is actually ranked 11th from the bottom among the 131 nations that took part in the World Bank survey. Today, as women advance in society, it is not surprising that they balance raising their children with working. Particularly during their pregnancies and the initial period following the delivery of their children, they need to maintain a work-life balance. They are able to care for their new-borns and heal after childbirth because to maternity privileges including paid leaves. The first few months following childbirth must be given to the mother and the baby since they are the most vulnerable and important times during this period. Therefore, it is acknowledged that paid maternity leaves and other maternity benefits are crucial to women's labour rights.

MATERNITY BENEFIT ACT 1961

Following India's independence, on December 12, 1961, the Union of India passed the Maternity Benefits Act of 1961. In accordance with the then-applicable international standards, the Act offered conditional benefits for pregnancy, childbirth, and complications associated to those. Despite the fact that India was still a developing country and in its 14th year of independence[3], the Act was quite thorough and careful attention was devoted to various dimensions of factors determining maternity benefits.

In India, maternity benefits are governed by the Maternity Benefit Act, 1961. The Act applies to all organisations with ten (10) or more employees[4]. The Act states that every woman who has worked for an entity for at least eighty (80) days is eligible for maternity benefits.

As stated by the Supreme Court in the case of Municipal Corporation of Delhi v. Female Workers (Muster Roll)[5], the Maternity Benefit Act of 1961 aims to provide all the facilities to a working woman in a dignified manner so that she may overcome the "state of motherhood honourably, peacefully, undeterred by the fear of being victimised for forced absence during the pre or postnatal period."

The Maternity Benefit Act of 1961 states that if there is no prenatal confinement and no paid postpartum care, the employer must provide the beneficiary a medical bonus of up to 1,000 rupees. The medical bonus has been increased by the Central Government to 25,000 rupees. The lady is entitled to paid leave if she miscarries or encounters any other problems related to pregnancy. Upon confirmation of any condition connected to pregnancy, the beneficiary is granted a 30-day additional leave with pay.

The woman is entitled to a break after reporting back to work and is permitted two breaks to feed the child until they are 15 months old. Every company with fifty or more female employees is required to have the "facility of a crèche" available in convenient areas.

Depending on the evidence offered, women will be permitted to leave for their tubectomy procedure with payment. The Act states that it is illegal for an employer to fire or dismiss a pregnant employee while she is away or on account of her pregnancy, or to give termination notice on a day when the notice would expire while she is away, or to alter any of the conditions of her employment to their disadvantage. The law prohibits wage reductions for light tasks assigned to pregnant mothers and breaks for child feeding. All businesses, including government-owned enterprises and those that hired persons to perform equestrian, acrobatic, and other performances for exhibition in factories, mines, and plantations, are subject to the law. It also applies to any store or company with ten or more workers. The act constituted a substantial improvement over the rudimentary one from 1928 with the addition of provisions for industrial, agricultural, and commercial establishments.

FEATURES & BENEFITS OF THE MATERNITY BENEFIT 1961 ACT

According to the Act, a woman is entitled to twelve weeks of maternity leave, not more than six of which may begin before the due date. This was considered in the ILO[6] guideline at the time. A woman cannot be fired or let go by her employer at any moment during or as a result of her absence, according to the 1961 standards. However, if the termination or discharge stems from substantial misconduct, the employer may give the employee written notice.

Women who are eligible for maternity leave under the law are entitled to benefits equal to the average daily wage for the time that they are actually away from their jobs.

According to this law, every woman has the right to maternity benefits and the choice of getting a medical bonus from her employer if the latter does not cover the cost of the employee's prenatal or postpartum care. In the event of the woman's demise, the employer is liable for paying all debts, including maternity benefits, to the woman's nominee or legal representative. For six weeks after the day of delivery, miscarriage, or medical termination of pregnancy, the employee is prohibited by the Act from recruiting any known woman in any location. No woman may work for any company for the six weeks that immediately follow the day of delivery or miscarriage.

Every woman has a legal right to maternity benefits, which her employer is obligated to provide at the rate of the typical daily income for the time she was actually off work, i.e.,

1. the days leading up to her delivery day.
2. both on the day of her delivery and for a short while after.

INDIAN JUDICIARY AND ITS TAKE ON MATERNITY BENEFIT ACT

In the case of Dr. Rachna Charusiya v. state of UP & others[7], a division bench of the High Court of Madras directed the state government to give all women 180 days of paid maternity leave, regardless of the sort of employment they hold, whether it be permanent, temporary/ad hoc, or on a contractual basis. According to supplemental instructions provided to the state response, all female employees who are recruited regularly, contractually, ad hoc, or temporarily and who have minor children who must be 18 years of age or younger shall be offered a 730-day paternity leave. A woman employee's term of employment shouldn't be cut short or excluded for maternity leave.

In B. Shah v. Presiding Officer, Labour Court Coimbatore (1978)[8], the Supreme Court stated that this must be kept in mind when interpreting the provisions of helpful laws like the Maternity Benefit Act, 1961, which is directly covered by Article 42 of the Indian Constitution and is designed to ensure social justice for female employees employed in plantations. In court, the issue of whether Sundays, which are paid holidays, should be taken into account when calculating the maternity benefit period arose. According to the Supreme Court of India, the Maternity Benefit Act, 1961, when combined with Article 42 of the Indian Constitution, was designed to help women protect not only their maternity rights but also their capacity to work productively and keep up a constant level of efficiency. She therefore asks for any amount that may become owed to her in lieu of covering the child's health and medical expenses. Maternity benefits are required by law in order to assist women in juggling their responsibilities as moms and employees. As a result, the Court decided that, in accordance with the rule of beneficial construction, Sundays would be included in the indicated time.

The Hon'ble Punjab and Haryana High Court declared in Mrs. Savita Ahuja v. State of Haryana & Others[9] (1998) that the petitioner should not be denied the right to maternity leave just because her position was entirely temporary or ad hoc in nature. It was unlawful to fire her from her employment owing to her pregnancy, and she is entitled to maternity leave with  full pay for the duration of her confinement. Consequently, these female government employees who were employed on a need-basis ought to be qualified for maternity leave as well.

In Smt. Archana Pandey v. State of M.P. & others[10] (2016), the question at hand was whether the petitioners, who were hired on contract, qualified for maternity leave benefits. The Madhya Pradesh High Court came to the conclusion that the Maternity Benefit Act should apply to contract employees as well because there is no reason why her employer cannot provide her with access to all the facilities, she needs to give birth in accordance with the Constitution. The respondents must provide maternity benefits to the petitioner.

In the 2009 case of J. Sharmila v. The Secretary to Government, Education Dept. Madras[11], the question of whether a married government employee was entitled to full payment for whatever maternity leave she took if she already had two living children was at stake. The petitioner gave birth to twins during her first pregnancy and a single kid during her second. As a result, the maternity leave was only applicable to the birth of the second child and was not based on the standard for the birth of the third child. The Court determined that it was sufficient to clarify that the state should not rely its decision to safeguard the woman at the time of her second delivery on how many children she had during her first two pregnancies if it wishes to do so. The significance must only be seen in terms of the health of the female employee of the government, not in terms of the number of children delivered during each delivery. For the time she took maternity leave during her second pregnancy, the petitioner is entitled to earn her complete salary.

There is nothing in the 1961 Act that limits the right to maternity leave to only regular female employees and excludes other female employees who are employed on a casual basis or on the muster roll on a daily wage basis, the Supreme Court ruled in Municipal Corporation of Delhi v. Female Workers (Muster Roll) and Others (2000)[12]. This is due to the fact that having children is the most natural thing for a woman to do. The employer must be understanding and considerate of the need to do whatever is necessary to make it simpler for a working woman to give birth to a child. They must also be aware of the physical difficulties a working woman would encounter if she attempted to do her job obligations while bearing a kid or while caring for the child after birth. In order for a working woman to successfully navigate motherhood without being discouraged by the risk of being victimised for being absent for a prolonged period of time before or after childbirth, the Maternity Benefit Act of 1961 aims to provide all these benefits to her in a dignified manner.

The petitioner in K.C. Chandrika v. Indian Red Cross Society[13] (2006) held a temporary clerical post with the Red Cross Society, although it was likely to endure indefinitely. After the petitioner requested it, the respondent approved her request for maternity leave. The leave would last for three months. When the petitioner learned that her services had been terminated while she was on leave, she was astonished to receive a notification from the respondents. Whether or not K. Chandrika's service termination was legal had to be decided. After considering all relevant information, the Hon'ble Court found that the respondent was compelled to reinstate the petitioner in service with continuity of service for the computation of service benefits. In light of this, the employee may be called upon to make a sacrifice that would only be for the good of the public and deserves to be paid compensation in terms of the payment of back wages.

CHANGES BROUGHT IN 2017 IN MATERNITY BENEFIT ACT

Given the reality that women have been subjugated for hundreds, if not thousands, of years, we must realize that changing mindsets and biased basic instincts will take time. With each generation, there is a greater acceptance of the idea that women are equal to men, and hence laws and legislation must be updated to keep up with the evolving worldview. In this spirit, both houses of parliament passed the Maternity Benefit (Amendment) Act [14]in February 2017. Let's take a look at some of the most important aspects of the modified laws.

• Increased Paid Maternity Leave: One of the significant improvements to the 2017 statute is the extension of paid maternity leave for female employees from 12 to 26 weeks. Women can take use of maternity leave benefits eight weeks before their expected delivery date and use the remaining weeks postpartum. However, if you have two or more surviving children, you are entitled to 12 weeks of paid maternity leave (six weeks before and six weeks after the projected date of delivery).

• Maternity Leave For Adoptive And Commissioning moms: When it comes to adoptions, the legislation divides moms into two categories. One is the 'adoptive mother,' who is the mother who adopts the child, and the other is the 'commissioning mother,' who is the mother who commissions the child. This refers to the biological mother whose egg is used to develop the embryo through IVF. According to the modified act, mothers who adopt a child under the age of three months are entitled to 12 weeks of maternity leave beginning on the date of adoption. Commissioning mothers are entitled to the same amount of leave.

• Work From Home Option: The Maternity Benefit Amendment Act also includes a provision that allows new mothers to work from home, which the woman employee may use after her 26-week leave term has expired. Depending on the nature of the job, female employees may be able to take advantage of this benefit on mutually agreed- upon terms with their employer.

• Creche Facility: The Maternity Benefit Amendment Act requires any establishment with 50 or more employees to furnish a creche facility. Women employees shall be entitled to visit the crèche four times per day (including rest intervals), and when creche facilities are not available, two one-half-hour rest periods shall be provided. The Act also requires employers to inform women about the maternity benefits that are available to them at the time of their appointment.

The amended act increased maternity benefits from 12 to 26 weeks. This is significant because it is consistent with the World Health Organization's advice that children be exclusively breastfed by their mothers for the first 24 weeks of life. The extending of maternity leave will aid in boosting child survival rates and the well development of both mother and child. This will also minimize the number of women leaving the labor sector due to a lack of proper maternity leave. The new act also conforms to international best practises, such as the Maternity Protection Convention, which requires at least 14 weeks of mandated maternity leave. Another important element is the addition of 12 weeks of maternity leave.

The Karnataka Maternity Benefit (Amendment) Rules, 2019

The maternity benefit 2019[15], establishes various rules for the provision of creche services that must be followed by all establishments. The Rules, as written, are a good move towards addressing the majority of employees' concerns, such as extending the facility to all employees' children, regardless of gender or nature of job. The guidelines also safeguard the health, safety, and holistic welfare of the employees' children by requiring the use of heat, rain, and water-resistant materials in the construction of the creche, as well as the provision of at least 250 ml of pure hygienic milk per kid and other refreshments every day at the creche. Some of the changes were -

• One crèche facility must be provided for every thirty children.
• Children up to the age of six years must have access to a crèche.
• All employees (permanent, temporary, regular, daily wage & contract, etc.) must have access to a crèche.
• The crèche facility must be placed on the premises of the establishment or within 500 meters of the establishment's entrance gate.
• This notification also specifies the standards and rules to be followed for the crèche's structure and facilities, as well as the equipment to be given by the employer.
• The crèche's working hours must match to the employment hours of the mother or parents of the children admitted to the crèche. If the women are engaged in two or more shifts as per statutory criteria and distributed over a period not exceeding eight hours per day, the crèche shall work in two or more shifts.
•                Also kept records for regular health checks and weighing of youngsters attending the crèche.
• A woman with a government-approved or recognised qualification and training in "Early Childhood Care and Education” or "Teachers Course Higher" [16]or an equivalent qualification shall serve as crèche-in-charge to care for children while their moms are away as teacher-cum-warden.
• The crèche must also keep the following records: Every child shall be medically examined before admission to the crèche. There shall be medical check-up of the children once in 02 months and their Body-Mass index (BMI) recorded once a month.

The employer also ensures that the children have access to outdoor play space which is safe, secure and well maintained, also ensures the safety and security of the children.

COMPARISON OF NEW AND OLD LAWS ON MATERNITY BENEFIT

Maternity Benefit Act, 1961-

1. Establishments were required to give expecting mothers 12 weeks of paid leave from work, with no more than six weeks preceding the projected delivery date. They were not permitted to employ women for six weeks following the day of her delivery. They were also prohibited from requiring employees to participate in any work that was-

• Arduous in nature
• Involved long hours of standing
• Any work that was likely to interfere with pregnancy or the normal development of the foetus from one month before her expected delivery date.

1. Expectant female employees were entitled to a monetary maternity bonus at the rate of the average daily wage for up to 12 weeks, with no more than 6 weeks preceding the date of her expected delivery. However, no female employee was eligible for this payment unless she had worked for the employer from whom she was claiming maternity leave for 80 days in the 12 months preceding the date of scheduled delivery.
2. Women's safety in difficult situations -

• Protection for women who have had a miscarriage, are undergoing Medical Termination of Pregnancy, or are suffering from sickness related to pregnancy, delivery, premature birth, or miscarriage.
• Businesses must also give enough coverage to women who do not have a successful birth or who suffer from postpartum ailments.
• In the event of a miscarriage or medical termination of pregnancy, the act entitles women to 6 weeks of paid leave at the rate of maternity benefits following the day of her pregnancy's termination

. • In the event of a postpartum illness, a woman is entitled to leave with wages at the maternity benefit rate in addition to the time of absence allowed under the maternity benefit, for a maximum period of one month.

The Act stated that it would be unlawful for an employer to remove or dismiss a female employee due to pregnant absence (maternity leave). The termination of a female employee on any other basis while she is on maternity leave does not deprive her of maternity benefits, unless it is due to gross misconduct.

In comparison to this Act came Maternity Benefit (Amendment) Act, 2017-

• • Employers must now provide 26 weeks of paid Maternity Leave, with no more than 8 weeks preceding the scheduled delivery date. Establishments must also remember that the 26 weeks of maternity leave are only required for the first two successful pregnancies. The paid leave entitlement for the third and fourth child will be 12 weeks each, with no more than 6 weeks preceding the projected date of delivery.
  •                Employers must provide 12 weeks of paid maternity leave to female employees who adopt a child under the age of three months, or to commissioning mothers (mothers who have children through surrogacy). The 12-week term will begin on the date the infant was born.
  • The statute includes a clause that allows an employer to allow a woman to work from home if the nature of the job allows it, even after she has taken maternity leave. The terms and circumstances, as well as the length of the arrangement, must be agreed upon between the employer and the woman.
  • Establishments with 50 or more employees are now required to have a crèche or a children's day care facility within a certain distance, either individually or as a common facility. An employer is then compelled to enable the lady four visits to the creche every day, in addition to the rest intervals she is allowed. The measures allow women to care for their children even after their maternity leave ends and they return to work.
  • Every establishment is expected to inform every woman, in writing and electronically, of every benefit available under the Act at the time of her appointment. All other (unchanged) provisions of the Maternity Benefits Act of 1961 remain in effect.

In Rama Pandey v. Union of India[17], the Delhi High Court ruled that even in the situation of surrogacy, the parents who provided the ova and sperm would be able to leave. The woman is entitled to maternity leave, and the father is eligible to paternity leave. It examined the reasons for providing maternity and paternity leave and determined that there is no distinction between biological, adoptive, and commissioning moms. As a result, it was determined that a commissioning mother is entitled to the same amount of leave as a biological mother. In reaching this determination, the court also held that statutes and standards should be modified to reflect modern technology and societal norms.

COMPARISON WITH OTHER COUNTRIES -

Singapore -

Singapore's maternity rules are extremely strict. It changes depending on the child's citizenship and thus the woman's marital status. If the child is not a Singaporean citizen, the mother doesn't Enjoy the full range of the act's advantages.

The following are the subsequent conditions under Singapore's Ministry of Manpower for the mother to have the entire 16 weeks of paid maternity leave:

• • The child is a Singaporean citizen, and the mother is legally married to the child's father.
  • The mother worked for the employer or was self-employed for at least three months before the child's birth.

At least one week's notice must be given to the employer before departing on maternity leave, and the delivery must be announced as soon as feasible. Otherwise, the employer has a good justification for not providing the notice on time, the employer can grant half of the whole sum.

Malaysia -

In Malaysia, under The Employment Act of 1955, a woman is entitled to 60 days of fully paid maternity leave if she has worked for at least 90 days in the four months preceding her maternity leave. The employer must learn for at least four months prior to maturity.

In some circumstances, the pregnant mother is eligible to more than two months of statutory leave:

• • Banks and some state government employees may take up to 90 days of maternity leave;
  • some multinational corporations grant even more than 90 days of maternity leave.
  • Some employers permit employees to work for more than 90 days without pay.

In all cases, it depends on the employer and therefore the employment agreement. It's worth noting that maternity benefits generally apply to the primary five children, no maternity leaves are provided on the birth of sixth and consequent children.

Thailand -

The Labour Protection Act of 1988 protects pregnant mothers in Thailand. Female employees there are entitled to the following benefits:

• • 90 days of maternity leave, plus any vacations in between.
  • Full 45-day pay from the employer and 45-day pay from the social welfare fund.
  • Minor adjustments in duties can be supplied with a doctor's certificate before or after the birth of a child. Full protection against termination of work.
  • Medical examination and child carrying expenditures, medical treatment expenses, confinement expenses, and other required expenses are also provided to pregnant women.

In comparison to the countries listed above, the act now in effect in India outperforms almost all of them in some way. India provides over 85% greater maternity leave than the international agreement, although all of these countries provide leave for an average of twelve to fourteen weeks. India has a better pay system and process than these countries. The main disadvantage of the Indian law is that the maximum accountability falls on the employer and the government bears almost no responsibility. Thailand, for example, has a social welfare fund that pays for 45 days of maternity leave. Furthermore, India is the only country among those considered that requires a crèche facility.

CONCLUSION

Maternity Leave [18]policies are important for new families, particularly new mothers, to help them manage the hurdles of balancing employment and family commitments after the birth of a child. This paper sheds light on the fundamental issues surrounding the use of leave and its consequences. women's labour market experiences, consequences for child well-being and effects on employers. The present legislation in India is consistent with international agency recommendations, not just on labour agreements, but also on child care conventions. Leave policies are delicate rules that, if offered for a short period of time, may result in health problems and prevent women from entering the labour. And if provided for an extended period of time, it can have a severe impact on their career. With regards to the employers, it is seen that the entire liability of maternity benefits in almost all the cases falls directly on the employer. In comparison to other countries, the lack of Government support results in the burden of payment entirely on the employers. A twelve-week to twenty-six-week maternity leave has propelled India into the top ten countries in the world. Because of its flexible maternity leave system, which allows people to work from home, offers a crèche, and is thus more easily accessible to unorganized industries, India has become one of the finest countries for women to work in. As a result, the Maternity Benefit Act has been a boon for working women, and this modification Act has delivered a large favourable atmosphere, protection, and security to all women in the country.

[1] Gender parity is a statistical term that quantifies the ratio of girls to boys or women to men for variables like income or education.

[2] https://data.worldbank.org

[3] India got independent on 15th august, 1947 and in 1961, 14 years of independence were completed and as of now 2023, 75 years have been completed.

[4] Section 2 of the maternity benefit act, 1961

[5] AIR 2000 SC 1274: (2000) 3 SCC 224

[6] By establishing global labor standards, the International Labor Organization, a United Nations organization, works to improve social and economic fairness. The first and oldest specialized agency of the UN, it was established in October 1919 under the auspices of the League of Nations.

[7] Civil Misc. Writ Petition No. 24627 of 2017

[8] 1978 AIR   12 1978 SCR (1) 701 1977 SCC (4) 334

[9] Civil Writ Petition No. 28341 of 2013

[10] WRIT PETITION NO.15523 of 2016

[11] Writ petition (MD)NO.13555 of 2009

[12] AIR 2000 SC 1274: (2000) 3 SCC 224

[13] 131 (2006) DLT 585, 2007 (3) SLJ 479 Delhi

[14] As per Section 2 of the Act, The Act is applicable to all those women employed in factories, mines, and including every shop or commercial establishment employing 10 or more employees.

The main aim of the Act is to regulate the employment of women during the period of childbirth. It has amended the provisions related to the duration and applicability of maternity leave, and other facilities.

[15] As per Section 2 of the Act, The Act is applicable to all those women employed in factories, mines, and including every shop or commercial establishment employing 10 or more employees.

The main aim of the Act is to regulate the employment of women during the period of childbirth. It has amended the provisions related to the duration and applicability of maternity leave, and other facilities.

[16] [ECE and TCH]

[17] 17th July, 2015.

[18] As provided under the ILO Maternity Protection Convention and Recommendations of 2000, maternity leave is a mother’s right to a period of leave for rest and recuperation from childbirth and its consequences thereof.