Legal Narrative
ABSTRACT
As we all know that our society is a male dominated or patriarchal society, but still there are no rules or benefits for a male employee in India the maternity benefit is a well recognised fundamental right of a working woman under labour law but paternity leave still does not have a proper legal framework. This creates an imbalance and puts the entire burden of child care on women.
This article is divided into two parts:- first part analyses the meaning of maternity benefit relevant case laws salient features recent amendments and implications of the maternity benefit act and its broader perspectives. The second part of this article examines the vacuum paternity leave, compares it with international standards and argues for a gender neutral paternal leave policy.
INTRODUCTION
In India, the governing laws are totally biased towards women and ignore the roles of men and other caregivers. The lawmakers made many laws related to maternity leave but they do not possess an all encompassing legal framework which provides paternity leave benefits. The constitution of India under Article-42 directs the State to make provision for securing just and humane conditions of work and for maternity relief.
Article-14 provides equal protection but failure to pay an instance of treating parents unequally as equals. As per Article-15(3), the law permits special provisions for women but their implementation with exclusion of men will create a situation that maintains existing stereotypes.
THE MATERNITY BENEFIT ACT, 1961
The Maternity Benefit Act,1961 is Act no.- 53 of 1961. It received the assent of the President on the 12th December 1961 and was published in the Gazette of India. As per Section-1 of the Act, this act may be called the Maternity Benefit Act 1961 and it applies to the whole of India. The main objective of this act is to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefits and certain other benefits. In other words, its objective is to provide financial support and job security to women during pregnancy. There are a total 30 sections under this act.
The Act amended in 2017 entitles women to 26 employees to 26 weeks of paid maternity leave. This can be availed for up to two children, with the leave for the third child being 12 weeks. Adoptive mothers are eligible for 12 weeks of leave for a child below three months of age. Surrogate mothers are also eligible for 12 weeks of leave.
Application of the Act:-
This act is applicable to all establishments having 10 or more employees whether full time or part time. Section 2(1)(a) of the act says that the act first applies to all factories, mines, plantations including government one and establishments covered under the ambit of law having 10 or more than 10 employees. As provided by the 2017 amendment, this includes the private sector as well.
In the case of Thomas John Muthoot v. Labour Officer (2014), it was held that a firm with only 3 employees will not be covered under theAct.
government organizations,
organizations centered by the central government, or
an establishment wherein persons are employed for the exhibition of equestrian, acrobatics,and other performances.
[NOTE:- The Maternity benefit Act shall be applied to any and all establishments having 10 or more than 10 employees.]
As per this Section, the State Government with Central Government approval and two months notice can extend it to any other industrial, commercial, agriculture establishment by notification however it does not apply to establishments already covered under the ESI Act, 1948, except for section 5A and 5B.
Definition Clause
The Definition Clause is given under Section-3 of the Act. The important definitions are:-
Clause-(e) deals with the definition of ‘establishment’ which means a factory, a mine, a plantation and establishment wherein persons are employed for the exhibition of equestrian acrobatics and other performances or an establishment to which the provisions of this act has been declared under sub section 4 of section 2 to be applicable.
Clause-(h) deals with the definition of ‘maternity benefit’ which means the payment referred in subsection one of section 5.
In other words, maternity benefit is a benefit given to the mothers to be or the mothers of a newly born baby with fully paid leave.
Clause-(j) deals with the definition of ‘miscarriage’ which means expulsion of the contents of a pregnant uterus at any period to or during the 26 week of pregnancy but does not include any miscarriage the causing of which is punishable under the IPC.
[The definition of miscarriage is similar to the definition as given in Section 2 (14-B)of the Employee's State Insurance Act, 1948].
As per Section-9, a woman shall be given a 6 weeks maternity benefits on the production of medical documents after her miscarriage or medical termination of pregnancy. And also clause- 9(A) of this section states that a woman shall get 2 weeks of maternity benefits immediately after the operation (after providing necessary medical documents).
Clause-(o) of the Act deals with the definition of ‘women’ which means a woman employed, whether directly or through any agency for wages in any establishment.
Prohibition of work during certain period
As per Section-4 of the Act neither an employer cannot employ any woman nor a woman herself cannot work in any establishment for 6 weeks right after her delivery or miscarriage.
Right to payment for maternity benefits
Under Section 5 of the Maternity Benefit Act, a woman who has worked for at least 160 days in the last 12 months is entitled to 12 weeks of paid leave (6 weeks before and 6 weeks after delivery), paid at her average daily wage.
In the case of Glen Brook Estate v. Plantation Office (2012) , it was held that even the daily wage workers are entitled to maternity
benefits under the scope of the Act.
Maternity benefits and a fully paid leave cannot be denied to contractual employees. This was the decision of the Hon’ble Central AdministrativeTribunal in the case of Anuradha Arya v. Govt. Girl Sr. School (2017).
Payment of Medical Bonus
As per Section-8, If a company does *NOT give free doctor check-up / medical care* to a pregnant woman before delivery and after delivery, then the company has to give her an extra *Rs. 25 as Medical Bonus* along with her maternity leave salary.
2017 AMENDMENT
The 2017 Amendment to the Maternity Benefit Act was brought in on the recommendation of the 259th Law Commission Report, which suggested increasing maternity benefits from 12 weeks to 180 days in line with CCS Rules and making it obligatory on the State to cover all women, including those in the unorganized and private sector.
The Amendment Bill was introduced in the Rajya Sabha by the Labour and Employment
Minister ‘Mr. Bandaru Dattatreya’, following recommendations from the 44th, 45th and 46th sessions of the Indian Labour Conference (ILC) and suggestions from the Ministry of Women and Child Development. The amendment was also supported by WHO recommendations to extend maternity leave to protect the health of the mother and child, as a child needs to be breastfed for 24 months to improve survival rate.
THE MISSING PATERNITY LEAVE FRAMEWORK IN INDIAN LABOUR LAW
The legal right of fathers to take time off work to spend time with their newborn children is known as paternity leave. New fathers can help their partners and care for their babies with this type of leave, which promotes gender equality and active childcare engagement.
The Indian Paternity Benefit Act 2019 aims to control men’s employment in particular firms at specified times before and after parenthood, in addition to offering paternity and related benefits.Government employees with fewer than two children are entitled to 15 days of leave before or within six months after giving birth.
However, the ILO does not prescribe any specific leave unlike maternity leave under the Maternity Benefits Act of 1961.
Legal Provisions governing Paternity Benefits in India
There is no specific legislation in India that governs paternity leave in India. Depending on whether the employee works for the Government of the private sector, India has different paternity leave laws like Central Civil Services (vacation) Rule 551(A),1972, male employees with fewer than two surviving children are entitled to 15 days of paternity leave which can be taken before or during the 6 months after birth or adoption of child.
Apart from the above mentioned rules the paternity benefit Bill 2017 was tabled before parliament however it is yet to take effect. The bill is applicable to the whole of India including all establishments being a factory mine or plantation including Government employees. All self employed persons and establishments in the unorganised sector where there are less than 10 employees.
CONCLUSION
The implementation of maternity and paternity benefits serves as vital resources which help to create gender equality and social equality between men and women. India needs to improve its maternity and paternity protection system to make a gender-neutral system which will enable labour regulations to meet both constitutional rights and international labour standards and practices.
SUGGESTIONS
There is an urgent need to reform the existing law to ensure true gender equality in parenthood:-
1) The Paternity Benefit Bill, 2017, which has been pending in Parliament for a long time, must be enacted to provide a minimum of 15 days of paid paternity leave to all fathers across both public and private sectors.
2) The financial burden of maternity benefits should not be solely placed on the employer, as this leads to discrimination against women in the hiring process; therefore, it should be made a State-funded benefit.
3)India should move towards the concept of Gender-Neutral Parental Leave, where the 26 weeks of leave can be shared between the mother and the father, ensuring that childcare is seen as a joint responsibility.
FOOTNOTES
[1]https://www.scribd.com/document/644875784/The -Maternity-Benefit-Act
[1] From Meta AI
[1]https://www.scribd.com/document/644875784/The-Maternity-Benefit-Act
[1]https://www.digisme.in/glossary/petrnity-leave-meaning-rules-benefits
[1]https://blog.ipleaders.in/analysis-current-legal-framework-paternity-leaves-india/#Legal-provisions-governing-paternity-leave-in-india
