The Maternity Benefit Act, 1961 (M.B. Act) provides for how many weeks' wages during the maternity period ?

Correct — B, (b) 12 weeks.

Section 5 of the Maternity Benefit Act, 1961 is the operative provision, and it is sub-section (3) that carries the figure this item wants. As it stood when this paper was set, section 5(3) provided that the maximum period for which any woman shall be entitled to maternity benefit shall be TWELVE WEEKS, of which not more than six weeks shall precede the date of her expected delivery. Twelve weeks is therefore the period of wages the Act attaches to the maternity period.

Read section 5 as three connected pieces, because only the third is being asked about and a candidate who has learnt all three cannot be shaken by a near-miss option.

SECTION 5(1) — WHAT IS PAID. Every woman is entitled to maternity benefit at the rate of the average daily wage for the period of her actual absence, that is, the period immediately preceding and including the day of her delivery, and any period immediately following that day. The benefit is a wage substitute, not a lump-sum grant, which is why the question is framed as "weeks' wages".

SECTION 5(2) — WHO QUALIFIES. She must have actually worked in the establishment of the employer from whom she claims the benefit for not less than eighty days in the twelve months immediately preceding her expected date of delivery.

SECTION 5(3) — HOW LONG. Twelve weeks, of which not more than six may fall before the expected date of delivery.

The rest of the Act arranges itself around that spine. Section 4 forbids an employer knowingly to employ a woman during the six weeks immediately following her delivery or miscarriage, and forbids her to work during that period. Section 8 gives a medical bonus where no pre-natal confinement and post-natal care is provided by the employer free of charge. Section 9 gives six weeks' leave with wages for a miscarriage or a medical termination of pregnancy. Section 9A gives two weeks for a tubectomy operation. Section 10 gives up to one further month's leave for illness arising out of pregnancy, delivery, premature birth, miscarriage, medical termination or tubectomy. Section 11 gives two nursing breaks a day until the child is fifteen months old. Section 12 protects her against dismissal or discharge during her absence.

WHAT HAS CHANGED SINCE, and it is a large change that a candidate studying today must hold alongside the 2016 figure. The Maternity Benefit (Amendment) Act, 2017 rewrote section 5(3). The ceiling is now TWENTY-SIX weeks for a woman with fewer than two surviving children, of which not more than eight weeks may precede the expected date of delivery; a woman who already has two or more surviving children keeps the older entitlement of twelve weeks with not more than six before. The same amendment added section 5(4), twelve weeks for a commissioning mother and for a woman adopting a child below three months of age, counted from the date the child is handed over; section 5(5), work from home after the benefit period where the nature of the work allows it and the employer and the woman agree; and section 11A, a creche facility in every establishment with fifty or more employees, with four visits a day allowed to it.

So twelve weeks is right for the statute as it stood when this paper was set, and twenty-six weeks is right for the statute as it stands now. Both numbers belong in a candidate's notes, attached to their own dates.

Why the others are wrong

• (a)11 weeks — Eleven weeks appears nowhere in the Maternity Benefit Act, 1961 — not in section 5, not in section 9, not in section 10. The number looks plausible only because the real figure decomposes into two sixes that do not quite behave like halves: section 5(3) allows not more than six weeks BEFORE the expected date of delivery, and section 4 prohibits employment for six weeks AFTER the delivery, so a reader who tries to reconcile the two by treating the day of delivery as a separate day outside both blocks can talk himself into eleven. The Act does no such thing; the twelve weeks in section 5(3) is a single continuous ceiling on the benefit, and the six-week figures describe how that ceiling may be distributed and what the employer may not do, not a separate arithmetic. Every other period in the Act is expressed in its own terms — six weeks for miscarriage or medical termination under section 9, two weeks for tubectomy under section 9A, one month of additional leave for pregnancy-related illness under section 10 — and none of them produces eleven either.
• (c)13 weeks — Thirteen weeks is a real number in Indian social-security law, which is exactly what makes it a good wrong answer, but it belongs to a different statute and a different contingency. Under the Employees' State Insurance Act, 1948, SICKNESS BENEFIT is payable for a maximum of 91 days in any two consecutive benefit periods, and 91 days is thirteen weeks. Maternity benefit under the ESI Act was itself twelve weeks in 2016 and was raised to twenty-six weeks in step with the 2017 amendment to the Maternity Benefit Act, so the ESI route gives no support to thirteen either. A candidate who has revised the two statutes together and remembers a thirteen somewhere in the ESI scheme is being invited to attach it to the wrong contingency. Keep the numbers with their contingencies: sickness is 91 days, maternity was 12 weeks and is now 26, extended sickness for specified long-term diseases runs to two years, and the disablement benefits are open-ended.
• (d)14 weeks — Fourteen weeks is the international minimum rather than the Indian statutory figure, and it is the most instructive of the three wrong options. The ILO's Maternity Protection Convention, 2000 (No. 183) provides in Article 4 that a woman to whom the Convention applies shall be entitled to maternity leave of not less than fourteen weeks. The earlier Maternity Protection Convention (Revised), 1952 (No. 103), which was the standard in view when India's own Act was drafted, prescribed at least twelve weeks — which is where the figure in section 5(3) comes from and why twelve is the right answer for a paper set in 2016. A candidate who has read the international standards but not the Indian section will reach for fourteen. The 2017 amendment took India's entitlement to twenty-six weeks, well above the fourteen-week international floor, so today the Indian number is neither twelve nor fourteen — one more reason to attach every figure to the instrument and the year it comes from.

MATERNITY BENEFIT IS A SOCIAL-SECURITY CONTINGENCY, and the Act of 1961 is India's principal employer-liability response to it. In social-security vocabulary the world's schemes handle maternity in one of two ways: as an EMPLOYER LIABILITY, where the individual employer pays the woman's wages for the period out of his own funds, or as SOCIAL INSURANCE, where a pooled fund built from contributions pays the benefit and no individual employer bears the cost of a particular pregnancy. The Maternity Benefit Act is the first kind; the Employees' State Insurance Act is the second. That distinction is not academic — an employer-liability scheme puts the cost of maternity onto whichever employer happens to have hired a woman of childbearing age, which is the standard criticism made of the model.

THE ACT'S REACH. Section 2 applies it to every establishment being a factory, mine or plantation, including any such establishment belonging to Government, and to every shop or establishment within the meaning of any law in force in a State in which ten or more persons are employed, or were employed on any day of the preceding twelve months. Section 3(o) defines "wages" and section 3(n) "woman", meaning a woman employed for wages, whether directly or through any agency, in any establishment.

THE OVERLAP WITH ESI, which is where most examination confusion about this Act begins. The Maternity Benefit Act does not apply to a factory or establishment to which the Employees' State Insurance Act, 1948 applies, save as otherwise provided in sections 5A and 5B. Section 5A preserves the entitlement of a woman who was already receiving maternity benefit under this Act immediately before the ESI Act came to apply to the establishment. Section 5B covers the woman who is employed in an ESI-covered establishment but is herself outside the ESI scheme because her wages exceed the wage ceiling — she gets her maternity benefit under this Act. So the two statutes are complementary rather than overlapping, and the dividing line is the ESI wage ceiling.

THE MACHINERY. Section 6 requires notice and claim, section 7 payment to the nominee on the woman's death, section 13 forbids deduction of wages on account of light work or nursing breaks, section 14 provides for Inspectors, section 17 for the payment of benefit wrongly withheld, section 21 for penalties and section 27 gives the Act overriding effect over inconsistent contracts and awards, though section 27(2) preserves anything more favourable to the woman.

Key facts

• Section 5(3) of the Maternity Benefit Act, 1961, as it stood in 2016, capped maternity benefit at TWELVE weeks, of which not more than six weeks could precede the expected date of delivery.
• Section 5(1) fixes the rate: the average daily wage for the period of the woman's actual absence, so the benefit is a wage substitute rather than a grant.
• Section 5(2) sets the qualifying condition — the woman must have actually worked at least eighty days in the twelve months immediately preceding her expected date of delivery.
• Section 4 forbids an employer knowingly to employ a woman during the six weeks immediately following her delivery or miscarriage, and forbids her to work during that period.
• Other periods in the Act: six weeks' leave for miscarriage or medical termination (section 9), two weeks for tubectomy (section 9A) and up to a further month for pregnancy-related illness (section 10).
• The Maternity Benefit (Amendment) Act, 2017 raised the section 5(3) ceiling to TWENTY-SIX weeks for a woman with fewer than two surviving children, with not more than eight weeks before the expected date.
• The 2017 amendment also added twelve weeks for commissioning and adopting mothers (section 5(4)), work from home (section 5(5)) and a creche in establishments with fifty or more employees (section 11A).
• The Act does not apply where the Employees' State Insurance Act, 1948 applies, except through sections 5A and 5B — section 5B covering the woman whose wages exceed the ESI wage ceiling.
• ILO Convention No. 103 of 1952 prescribed at least twelve weeks' maternity leave and Convention No. 183 of 2000 raised the standard to not less than fourteen weeks.

Common traps

• Answering with today's twenty-six weeks. The figure in section 5(3) was twelve weeks until the 2017 amendment, and this paper was set before it.
• Confusing the twelve-week ceiling in section 5(3) with the six-week prohibition in section 4. One caps the benefit; the other bars employment after delivery.
• Importing the ILO's fourteen weeks. That is the international minimum under Convention No. 183, not an Indian statutory entitlement.
• Attaching the ESI Act's ninety-one days of sickness benefit — thirteen weeks — to maternity, where it does not belong.
• Forgetting the qualifying condition in section 5(2): eighty days of actual work in the preceding twelve months, without which no benefit is payable at all.
• Assuming the Act covers every woman worker. It applies to factories, mines, plantations and shops or establishments employing ten or more persons, and yields to the ESI Act except through sections 5A and 5B.

• practice — not a real PYQ

  Under the Maternity Benefit Act, 1961 as amended in 2017, what is the maximum period of maternity benefit available to a woman who already has two or more surviving children ?

  • (a)6 weeks
  • (b)12 weeks
  • (c)26 weeks
  • (d)8 weeks

  Answer(b) 12 weeks — the second proviso to section 5(3) as amended keeps the older ceiling of twelve weeks, of which not more than six may precede the expected date of delivery, for a woman who already has two or more surviving children. The twenty-six weeks in option (c) applies only where she has fewer than two surviving children.

• practice — not a real PYQ

  For how many days must a woman have actually worked in the twelve months immediately preceding her expected date of delivery in order to qualify for maternity benefit under section 5(2) of the Maternity Benefit Act, 1961 ?

  • (a)60 days
  • (b)70 days
  • (c)80 days
  • (d)90 days

  Answer(c) 80 days — section 5(2) requires not less than eighty days of actual work in the establishment of the employer from whom the benefit is claimed, during the twelve months immediately preceding the date of her expected delivery.