INTRODUCTION
Maternal reproductive health is a huge concern in India. Many women die due to complications during pregnancy or even during the birth of the child. In such a situation, it becomes the collective responsibility of the state to take measures to improve the reproductive health of women. In India, the birth of a child is very celebrated and some families even plan on childbirth. The working women become concerned with the care of the child and the continuation of their profession. All this causes a dilemma for them to choose between family planning and continuing with their profession. Moreover, pregnant women need more care during pregnancy. Maternity leave seems to be a very helpful step in this situation.
Maternity leave is a paid leave or absence from work provided by an employer to a woman employee for the specified period before or after childbirth.[1]Maternal leave seems to be a very helpful step in all these issues where proper care is ensured to working women during and post pregnancy and maintain their professional standards at the same time.
THE MATERNITY ACT OF 1961
The Maternity Act of 1961 was passed to provide benefits to various women who are employed and proceeding to the phase of new motherhood. The act recognised the right to payment of maternity benefits as a statutory right based on certain requirements.[2] As per the 1961 legislation, every working woman is entitled to and every employer is liable to pay maternity benefits at the rate of average daily wage for the period of her actual absence proceeding for six weeks immediately including the date of her delivery. Every pregnant woman, who as per this act has worked for the establishment of that employer for not less than 80 days within 12 months preceding immediately to the date of her delivery for twelve weeks[3]. Under Section 21 of the Act, if an employer does not comply with the act or in case fires off the woman from the job knowing about her pregnancy, that employer can be sentenced to imprisonment by the labour court for a term not less than three years which can be extended to one year or fine which can be extended to five thousand rupees or both.[4]
THE MATERNITY BENEFIT (AMENDMENT ACT) 2017
This amendment was brought to the existing act of 1961 to improve women’s participation in the labour force and the quality of their employment. One of the major changes was the extension of the leave period permissible from twelve weeks to twenty-six weeks for the first two children so that the new mothers can spend more time in childcare even after delivery and there should be more bonding among both mother and child and their care which is necessary. Every establishment which has 10 or more employees has to mandatorily provide maternity leave and every establishment which has more than fifty employees has to mandatorily provide the crèche facility. The employer during the time of pregnancy (at the discretion of the woman or if she so agrees) can be assigned to work from home.[5]In case of commissioning (biological mother whose child has been conceived through surrogacy) or adoptive mothers if the child is below three months are entitled to maternity leave for twelve weeks from the day of commissioning or adoption.[6] Also, In the case of central government employees, all the females are entitled to 60 days additional maternity leave in case of death of an infant or stillborn child and it may be defined as 28 days within the birth of that child.[7]
JUDICIAL PRECEDENTS
The Supreme Court recently while deciding a case involving an issue of rejection of a woman’s maternity leave on the ground that her partner already had two kids with his ex-wife and her first biological child is her third child. In this case, Supreme Court held that Familial relationships can be in the form of domestic, unmarried relationship or queer relationships. The court also held that when such situations arise then the court would serve the purpose of the law to provide maternity benefits to women and not try to prevent its application.[8] In a recent case before the Madras High Court, the court ruled that maternity benefits cannot be denied by standing on mere technicalities and interpretation of the law in this sense as it defeats the entire purpose of making that law. Thus, the court held that the maternity benefit should be given to non-permanent women employees as well.[9]
CHALLENGES FACING ACCESSIBILITY TO WOMEN
One of the major challenges to the accessibility of maternity leave to women is the awareness regarding their rights. In many cases, the benefit of this policy becomes futile in cases where women are themselves not well aware of their rights. In a recent report, it was shown that this policy is not able to benefit women overall in the country as it is applied to establishment which has more than 10 employees. Though, the policy covers both the organized and the unorganised sectors such as mining. But a big majority of women are employed in such organisations or as a daily wager. The law does not provide benefits to those women. In a situation where India provides maternity leave for 26 weeks which is the third highest in the world, its benefits are only enjoyed by a very small proportion of women leaving the ones who may need those benefits.[10]
CONCLUSION
The law provides for maternity leave but in many cases, women still struggle to get their rights. In a recent case, the Supreme Court was permitted to hear the case in which a woman challenged the term of maternity leave of 12 weeks in the case of adoptive mothers on the grounds of arbitrariness and discrimination against adoptive mothers as the law does not provide for maternity leave for adoptive women for infants aged more than three months. It was also contended that the procedure under the CARA for adoption takes longer than 3 months, thus the law does not address the concerns of adoptive mothers.[11] Adoptive mothers too need to take care of the child and they also face issues with balancing childcare and their profession. In a recently made statement by a NITI Aayog member, it was stated that both the private and public sectors should sit together to frame for policy for increasing the maternity leave duration from twenty-six to nine months to ensure proper childcare.[12]Thus, the steps taken through legislative action for ensuring better female health are admirable but it has a lot of challenges in its way to ensure the empowerment of women in the true sense and to enhance their participation in the workforce.
Author(s) Name: Chahat Sharma (UPES, Dehradun)
References:
[1]What is maternity leave ? : Meaning & definition Keka. Available at: https://www.keka.com/glossary/maternity-leave (Accessed: 20 September 2023).
[2]The Maternity Benefit Act 1961, s 5
[3]Kiran Kumari (2021) Main provisions of the maternity benefit act for women employees, Staff News. Available at: https://www.staffnews.in/2015/03/main-provisions-of-maternity-benefit.html (Accessed: 20 September 2023)
[4] The Maternity Benefit Act 1961, s. 21
[5] pib.gov.in (2023) Ministry of Labor and Employment. Available at https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1898874 (Accessed: 20 August 2023)
[6]HSCW. Available at: https://hscw.in/content/images/TheMaternityBenefitsAct-3ac2512835.pdf (Accessed: 20 August 2023)
[7] PTI (2022) Special 60 days maternity leave for Central Govt employees if Infant Dies, TheQuint. Available at: https://www.thequint.com/fit/health-news/central-govt-employees-to-get-60-days-maternity-leave (Accessed: 20 August 2023)
[8]PTI (2022) Working Woman’s statutory right to avail maternity leave cannot be just taken away: SC, The Hindu. Available at: https://www.thehindu.com/news/national/working-womans-statutory-right-to-avail-maternity-leave-cannot-be-just-taken-away-sc/article65777962.ece (Accessed: 20 September 2023)
[9]Mohamed Imranullah S. (2023) Can’t deny maternity benefits on technicality, Madras High Court tells Govt. officials, The Hindu. Available at: https://www.thehindu.com/news/national/tamil-nadu/cant-deny-maternity-benefits-on-technicality-madras-high-court-tells-govt-officials/article66376958.ece (Accessed: 20 September 2023)
[10]India’s seemingly generous maternity law benefits merely 1% of its women: World Economic Forum. Available at: https://www.weforum.org/agenda/2019/10/the-harsh-reality-behind-indias-generous-maternity-laws (Accessed: 20 August 2023)
[11]PTI (2023) Discrimination between Biological & Adoptive Mothers: SC agrees to examine the law, India Today. Available at: https://www.indiatoday.in/law/story/maternity-benefits-act-discrimination-biological-mothers-adoptive-mothers-supreme-court-2371686-2023-05-05 (Accessed: 20 August 2023)
[12]Private and public sectors should consider increasing maternity leave to 9 months: Niti Aayog member – et healthworld (2023) ETHealthworld.com. Available at: https://health.economictimes.indiatimes.com/news/policy/private-and-public-sectors-should-consider-increasing-maternity-leave-to-9-months-niti-aayog-member/100262114 (Accessed: 20 August 2023)
