Employees working in the public sector get certain paternity leave benefits. Male employees with less than 2 surviving children get a leave of 15 days to take care of their newborn/ adopted child.

Who can seek Maternity Benefits?

Last updated on Jun 22, 2022

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 1
  • Having a child through a surrogate 2
  • 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. 3 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. 4

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. 5

Casual/ Muster Roll employee

Courts have held that even women engaged on a casual basis, or on a muster roll basis6) on daily wages, are entitled to get the benefit of maternity leave at par with regular employees. 7

Contractual employee

Maternity leave benefits are also accorded to contractual employees. 8 Further, contractual employees are also entitled to 26 weeks of maternity leave. 9 However, a woman cannot avail maternity benefits after the expiry of the contractual period. 10

  1. Section 5(4), The Maternity Benefit (Amendment) Act, 2017.[]
  2. Section5(4), The Maternity Benefit (Amendment) Act, 2017.[]
  3. Section 5(2), The Maternity Benefit Act, 1961.[]
  4. Proviso, Section 5(2), The Maternity Benefit Act, 1961[]
  5. 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[]
  6. Swati and Ors. Vs. Government of NCT of Delhi and Ors. 2016 (1) SLJ 201 (CAT[]
  7. 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.[]
  8. 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.[]
  9. Jeslin Jose Vs. Cochin Port Trust 2019 (2) KHC 797[]
  10. 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.[]

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