Who can seek Maternity Benefits?

You can seek maternity benefits if you are a woman and if you are:

• Pregnant for the first time
• Pregnant with one child or 2 children already
• Adopting a child below the age of 3 months ^{(( Section 5(4), The Maternity Benefit (Amendment) Act, 2017.))}
• Having a child through a surrogate ^{(( Section5(4), The Maternity Benefit (Amendment) Act, 2017.))}
• Recovering from a miscarriage, abortion or tubectomy operation

You can enjoy maternity benefits such as taking a period of leave and getting paid during this period. However, you can only enjoy such benefits if you have worked for an employer for a minimum of 80 days in the last 12 months before your delivery. ^{(( Section 5(2), The Maternity Benefit Act, 1961.))} This applies to all women who are pregnant, irrespective of age or marital status. However, this shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. ^{(( Proviso, Section 5(2), The Maternity Benefit Act, 1961))}

Currently, under the law, only women can seek maternity benefits. Men or persons who identify with other genders do not have an option to seek the benefits. However, you can check with the internal policy of your organization as it may provide for gender-neutral pregnancy leaves or paternity leaves.

Types of employment

Regular employee

Maternity benefit does not differentiate between permanent, temporary and contractual employees, so denying the benefit to any type of worker is against the law. ^{(( Indu Joshi Vs. State of Uttarakhand and Ors. 2013 (139) FLR 439; Rachna Chaurasiya Vs. State of U.P. and Ors. 2017 (6) ALJ 454))}

Casual/ Muster Roll employee

Courts have held that even women engaged on a casual basis, or on a muster roll basis^{(( Swati and Ors. Vs. Government of NCT of Delhi and Ors. 2016 (1) SLJ 201 (CAT)))} on daily wages, are entitled to get the benefit of maternity leave at par with regular employees. ^{(( Anju Sharma Vs. Lt. Governor, NCT of Delhi and Ors. In The Central Administrative Tribunal Principal Bench At New Delhi O.A. No. 543/2011; Municipal Corporation of Delhi Vs Female Workers (Muster Roll) and Ors. AIR 2000 SC 1274; Geeta Sharma Vs. Union of India RLW2001(4) Raj 637.))}

Contractual employee

Maternity leave benefits are also accorded to contractual employees. ^{(( Priyanka Gujarkar Shrivastava Vs. Registrar General and Ors. 2017 Lab IC 1646; Shanti Mehra Vs. State of Uttarakhand and Ors. 2017(2) UC 1438; State of H.P. Vs. Sudesh Kumari 2015 (145) FLR 516.))} Further, contractual employees are also entitled to 26 weeks of maternity leave. ^{(( Jeslin Jose Vs. Cochin Port Trust 2019 (2) KHC 797))} However, a woman cannot avail maternity benefits after the expiry of the contractual period. ^{(( Bharti Gupta Vs. Respondent: Rail India Technical and Economical Services Ltd. (Rites) and Ors. 123 (2005) DLT 138; Kavita Yadav Vs. The Secretary, Ministry of Health and Family Welfare Department W.P. (C.) No. 8884/2019 DHC.))}