THE MATERNITY BENEFIT ACT, 1961

An Act to regulate the employment of women in certain establishments

for certain periods before and after child-birth and to provide for
maternity benefit and certain other benefits.

BE it enacted by Parliament in the Twelfth Year of the Republic of India

as follows:--

1.Short title, extent and commencement.

1. Short title, extent and commencement.- (1) This Act may be called
the Maternity Benefit Act, 1961.(2) It extends to the whole of India
2***.

(3) It shall come into force on such date3* as may be notified in this
behalf in the Official Gazette,--

4*[(a) in relation to mines and to any other establishment wherein

persons are employed for the exhibition of equestrian, acrobatic and
other performances, by the Central Government; and]

(b) in relation to other establishments in a State, by the

State Government.

2.Application of Act.

2. Application of Act.- 5*[(1) It applies, in the first instance,--

(a) to every establishment being a factory, mine or plantation including

any such establishment belonging to Government and to every
establishment wherein persons are employed for the exhibition of
equestrian, acrobatic and other performances;

(b) to every shop or establishment within the meaning of any law for
the time being in force in relation to shops and establishments in a
State, in which ten or more persons are employed, or were employed,
on any day of the preceding twelve months:]

Provided that the State Government may, with the approval of the
Central Government, after giving not less than two months notice of its
intention of so doing, by notification in the Official Gazette, declare that
all or any of the provisions of this Act shall apply also to any other
establishment or class of establishments, industrial, commercial,
agricultural or otherwise.

(2) 6*[Save as otherwise provided in 7*[sections 5A and 5B], nothing

contained in this Act] shall apply to any factory or other establishment
to which the provisions of the Employees State
Insurance Act, 1948 (34 of 1948), apply for the time being.

3. Definitions.-

In this Act, unless the context otherwise requires,--

(a) "appropriate Government" means, in relation to an establishment

being a mine, 1*[or an establishment wherein persons are employed for
the exhibition of equestrian, acrobatic and other performances,] the
Central Government and in relation to any other establishment, the
State Government;

(b) "child" includes a still-born child;

(c) "delivery" means the birth of a child;

(d) "employer" means--

(i) in relation to an establishment which is under the control of the

Government, a person or authority appointed by the Government for
the supervision and control of employees or where no person or
authority is so appointed, the head of the department;

(ii) in relation to an establishment under any local authority, the person

appointed by such authority for the supervision and control of
employees or where no person is so appointed, the chief executive
officer of the local authority;

(iii) in any other case, the person who, or the authority which, has the
ultimate control over the affairs of the establishment and where the
said affairs are entrusted to any other person whether called a
manager, managing director, managing agent, or by any other name,
such person;

2*[(e) "establishment" means--

(i) a factory;

(ii) a mine;

(iii) a plantation;

(iv) an establishment wherein persons are employed for the exhibition

of equestrian, acrobatic and other performances; 3*xxx

4*[(iva) a shop or establishment; or]

(v) an establishment to which the provisions of this Act have been

declared under sub-section
(1) of section 2 to be applicable;]

(f) "factory" means a factory as defined in clause (m) of section 2 of the

Factories Act, 1948 (63 of 1948)
 (g) "Inspector" means an Inspector appointed under section
14;

(h) "maternity benefit" means the payment referred to in sub-section

(1) of section 5;

(i) "mine" means a mine as defined in clause (j) of section

2 of the Mines Act, 1952 (35 of 1952)

(j) "miscarriage" means expulsion of the contents of a pregnant uterus

at any period prior to or during the twenty-sixth week of pregnancy but
does not include any miscarriage, the causing of which is punishable
under the Indian Penal Code (45 of 1860)

(k) "plantation" means a plantation as defined in clause (f)

of section 2 of the Plantations Labour Act, 1951 (69.of 1951;)

389.(l) "prescribed" means prescribed by rules made under this

Act;

(m) "State Government", in relation to a Union territory, means the

Administrator thereof;

(n) "wages" means all remuneration paid or payable in cash to a

woman, if the terms of the contract of employment, express or implied,
were fulfilled and includes--

(1) such cash allowances (including dearness allowance and house rent
allowance) as a woman is for the time being entitled to;

(2) incentive bonus; and

(3) the money value of the concessional supply of foodgrains and other
articles,

but does not include--

(i) any bonus other than incentive bonus;

(ii) over-time earnings and any deduction or payment made on account

of fines;

(iii) any contribution paid or payable by the employer to any pension

fund or provident fund or for the benefit of the woman under any law
for the time being in force; and

(iv) any gratuity payable on the termination of service;

(o) "woman" means a woman employed, whether directly or through

any agency, for wages in any establishment.

4.Employment of, or work by, women prohibited during certain period.

4. Employment of, or work by, women prohibited during certain period.-

(1) No employer shall knowingly employ a woman in any establishment
during the six weeks immediately following the day of her delivery or
 her miscarriage.

(2) No woman shall work in any establishment during the six weeks
immediately following the day of her delivery or her miscarriage.

(3) Without prejudice to the provisions of section 6, no pregnant woman

shall, on a request being made by her in this behalf, be required by her
employer to do during the period specified in sub-
section (4) any work which is of an arduous nature or which involves
long hours of standing, or which in any way is likely to interfere with
her pregnancy or the normal development of the foetus, or is likely to
cause her miscarriage or otherwise to adversely affect her health.

(4) The period referred to in sub-section (3) shall be--

(a) the period of one month immediately preceding the period of six
weeks, before the date of her expected delivery;

(b) any period during the said period of six weeks for which the
pregnant woman does not avail of leave of absence under section
6.5.Right to payment of maternity benefit.

5. Right to payment of maternity benefit.- 1*[(1) Subject to the

provisions of this Act, every woman shall be entitled to, and her
employer shall be liable for, the payment of maternity benefit at the
rate of the average daily wage for the period of her actual absence, that
is to say, the period immediately preceding the day of her delivery, the
actual day of her delivery and any period immediately following that
day.]

Explanation.--For the purpose of this sub-section, the average daily

wage means the average of the womans wages payable to her for the
days on which she has worked during the period of three calendar
months immediately preceding the date from which she absents herself
on account of maternity, 1*[the minimum rate of wage fixed or revised
under the Minimum Wages Act, 1948 or ten rupees, whichever is the
highest.]

(2) No woman shall be entitled to maternity benefit unless she has

actually worked in an establishment of the employer from whom she
claims maternity benefit, for a period of not less than 1*[eighty days] in
the twelve months immediately preceding the date of her expected
delivery:

Provided that the qualifying period of 1*[eighty days] aforesaid shall

not apply to a woman who has immigrated into the State of Assam and
was pregnant at the time of the immigration.

Explanation.--For the purpose of calculating under this sub-

section the days on which a woman has actually worked in the
establishment, 1*[the days for which she has been laid off or was on
holidays declared under any law for the time being in force to be
holidays with wages] during the period of twelve months immediately
preceding the date of her expected delivery shall be taken into account.
 1*[(3) 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:]

Provided that where a woman dies during this period, the maternity
benefit shall be payable only for the days up to and including the day of
her death:

1*[Provided further that where a woman, having been delivered of a

child, dies during her delivery or during the period immediately
following the date of her delivery for which she is entitled for the
maternity benefit, leaving behind in either case the child, the employer
shall be liable for the maternity benefit for that entire period but if the
child also dies during the said period, then, for the days up to and
including the date of the death of the child.]

Continuance of payment of maternity benefit in certain cases.

1*[5A. Continuance of payment of maternity benefit in certain cases.-

Every woman entitled to the payment of maternity benefit under this
Act shall, notwithstanding the application of the Employees
State Insurance Act, 1948 (34 of 1948), to the factory or other
establishment in which she is employed, continue to be so entitled until
she becomes qualified to claim maternity benefit under section
50 of that Act.]

Payment of maternity benefit in certain cases.

2*[5B. Payment of maternity benefit in certain cases.- Every woman--

(a) who is employed in a factory or other establishment to which the

provisions of the Employees State Insurance
Act, 1948 (34 of 1948), apply;

(b) whose wages (excluding remuneration for overtime work)

for a month exceed the amount specified in sub-clause
(b) of clause (9) of section 2 of that Act; and

(c) who fulfils the conditions specified in sub-section (2)

of section 5,

shall be entitled to the payment of maternity benefit under this Act.]

6.Notice of claim for maternity benefit and payment thereof.

6. Notice of claim for maternity benefit and payment thereof.- (1)

Any woman employed in an establishment and entitled to maternity
benefit under the provisions of this Act may give notice in writing in
such form as may be prescribed, to her employer, stating that her
maternity benefit and any other amount to which she may be entitled
under this Act may be paid to her or to such person as she may
nominate in the notice and that she will not work in any establishment
during the period for which she receives maternity benefit.

(2) In the case of a woman who is pregnant, such notice shall state the
date from which she will be absent from work, not being a date earlier
than six weeks from the date of her expected delivery.

(3) Any woman who has not given the notice when she was pregnant
may give such notice as soon as possible after the delivery.

3*[(4) On receipt of the notice, the employer shall permit such woman
to absent herself from the establishment during the period for which
she receives the maternity benefit.]

(5) The amount of maternity benefit for the period preceding the date
of her expected delivery shall be paid in advance by the employer to the
woman on production of such proof as may be prescribed that the
woman is pregnant, and the amount due for the subsequent period shall
be paid by the employer to the woman within forty-eight hours of
production of such proof as may be prescribed that the woman has
been delivered of a child.

392.(6) The failure to give notice under this section shall not disentitle a
woman to maternity benefit or any other amount under this
Act if she is otherwise entitled to such benefit or amount and in any
such case an Inspector may either of his own motion or on an
application made to him by the woman, order the payment of such
benefit or amount within such period as may be specified in the order.

7.Payment of maternity benefit in case of death of a woman.

7. Payment of maternity benefit in case of death of a woman.-If a

woman entitled to maternity benefit or any other amount under this
Act, dies before receiving such maternity benefit or amount, or where
the employer is liable for maternity benefit under the second proviso to
sub-section (3) of section 5, the employer shall pay such benefit or
amount to the person nominated by the woman in the notice given
under section 6 and in case there is no such nominee, to her legal
representative.

8.Payment of medical bonus.

8. Payment of medical bonus.- Every woman entitled to maternity

benefit under this Act shall also be entitled to receive from her
employer a medical bonus of 1*[two hundred and fifty rupees], if no
pre-natal confinement and post-natal care is provided for by the
employer free of charge.

9.Leave for miscarriage.

9. Leave for miscarriage.- In case of miscarriage, a woman shall, on

production of such proof as may be prescribed, be entitled to leave with
 wages at the rate of maternity benefit, for a period of six weeks
immediately following the day of her miscarriage.

10.Leave for illness arising out of pregnancy, delivery, premature birth

of child, or miscarriage.

10. Leave for illness arising out of pregnancy, delivery, premature birth
of child, or miscarriage.- A woman suffering from illness arising out of
pregnancy, delivery, premature birth of child or miscarriage shall, on
production of such proof as may be prescribed, be entitled, in addition
to the period of absence allowed to her under section 6, or, as the case
may be, under section 9, to leave with wages at the rate of maternity
benefit for a maximum period of one month.

11.Nursing breaks.

11. Nursing breaks.- Every woman delivered of a child who returns to

duty after such delivery shall, in addition to the interval for rest allowed
to her, be allowed in the course of her daily work two breaks of the
prescribed duration for nursing the child until the child attains the age
of fifteen months.

12.Dismissal during absence of pregnancy,

12. Dismissal during absence of pregnancy,.- (1) When a woman

absents herself from work in accordance with the provisions of this
Act, it shall be unlawful for her employer to discharge or dismiss her
during or on account of such absence or to give notice of discharge or
dismissal on such a day that the notice will expire during such absence,
or to vary to her disadvantage any of the conditions of her service.

(2) (a) The discharge or dismissal of a woman at any time during her
pregnancy, if the woman but for such discharge or dismissal would have
been entitled to maternity benefit or medical bonus referred to in
section 8, shall not have the effect of depriving her of the maternity
benefit or medical bonus:

Provided that where the dismissal is for any prescribed gross

misconduct, the employer may, by order in writing communicated to
the woman, deprive her of the maternity benefit or medical bonus or
both.

2*[(b) Any woman deprived of maternity benefit or medical bonus, or

both, or discharged or dismissed during or on account of her absence
from work in accordance with the provisions of this Act, may, within
sixty days from the date on which order of such deprivation or
discharge or dismissal is communicated to her, appeal to such authority
as may be prescribed, and the decision of that authority on such
appeal, whether the woman should or should not be deprived of
maternity benefit or medical bonus, or both, or discharged or dismissed
shall be final.]
393.(c) Nothing contained in this sub-section shall affect the provisions
 contained in sub-section (1).

13.No deduction of wages in certain cases.

13. No deduction of wages in certain cases.-No deduction from the

normal and usual daily wages of a woman entitled to maternity benefit
under the provisions of this Act shall be made by reason only of--

(a) the nature of work assigned to her by virtue of the provisions

contained in sub-section (3) of section 4;
or

(b) breaks for nursing the child allowed to her under the provisions of
section 11.14.Appointment of Inspectors.

14. Appointment of Inspectors.- The appropriate Government may, by

notification in the Official Gazette, appoint such officers as it thinks fit to
be Inspectors for the purposes of this Act and may define the local
limits of the jurisdiction within which they shall exercise their functions
under this Act.

15.Powers and duties of Inspectors.

15. Powers and duties of Inspectors.-An Inspector may, subject to such

restrictions or conditions as may be prescribed, exercise all or any of
the following powers, namely:--

(a) enter at all reasonable times with such assistants, if any, being
persons in the service of the Government or any local or other public
authority, as he thinks fit, any premises or place where women are
employed or work is given to them in an establishment, for the
purposes of examining any registers, records and notices required to be
kept or exhibited by or under this Act and require their production for
inspection;

(b) examine any person whom he finds in any premises or place and
who, he has reasonable cause to believe, is employed in the
establishment:

Provided that no person shall be compelled under this section to answer

any question or give any evidence tending to incriminate himself;

(c) require the employer to give information regarding the names and
addresses of women employed, payments made to them, and
applications or notices received from them under this Act; and

394.(d) take copies of any registers and records or notices or any

portions thereof.

16.Inspectors to be public servants.

16. Inspectors to be public servants.- Every Inspector appointed under
this Act shall be deemed to be a public servant within the meaning of
section 21 of the Indian Penal Code. (45 of 1860.)

17.Power of Inspector to direct payments to be made.

17. Power of Inspector to direct payments to be made.- 1*[(1)

Any woman claiming that--

(a) maternity benefit or any other amount to which she is entitled under
this Act and any person claiming that payment due under section 7 has
been improperly withheld;

(b) her employer has discharged or dismissed her during or on account

of her absence from work in accordance with the provisions of this Act,

may make a complaint to the Inspector.

(2) The Inspector may, of his own motion or on receipt of a complaint

referred to in sub-section (1), make an inquiry or cause an inquiry to be
made and if satisfied that--

(a) payment has been wrongfully withheld, may direct the payment to
be made in accordance with his orders;

(b) she has been discharged or dismissed during or on account of her

absence from work in accordance with the provisions of this Act, may
pass such orders as are just and proper according to the circumstances
of the case.]

(3) Any person aggrieved by the decision of the Inspector under sub-
section (2) may, within thirty days from the date on which such decision
is communicated to such person, appeal to the prescribed authority.

(4) The decision of the prescribed authority where an appeal has been
preferred to it under sub-section (3) or of the Inspector where no such
appeal has been preferred, shall be final.

1*[(5) Any amount payable under this section shall be recoverable by

the Collector on a certificate issued for that amount by the
Inspector as an arrear of land revenue.]

18.Forfeiture of maternity benefit.

18. Forfeiture of maternity benefit.- If a woman works in any

establishment after she has been permitted by her employer to absent
herself under the provisions of section 6 for any period during such
authorised absence, she shall forfeit her claim to the maternity benefit
for such period.

19.Abstract of Act and rules thereunder to be exhibited.

19. Abstract of Act and rules thereunder to be exhibited.- An abstract of
the provisions of this Act and the rules made thereunder in the
language or languages of the locality shall be exhibited in a conspicuous
place by the employer in every part of the establishment in which
women are employed.

20.Registers, etc.

20. Registers, etc. Every employer shall prepare and maintain such
registers, records and muster-rolls and in such manner as may be
prescribed.

21.Penalty for contravention of Act by employer.

2*[21. Penalty for contravention of Act by employer.- (1) If any

employer fails to pay any amount of maternity benefit to a woman
entitled under this Act or discharges or dismisses such woman during or
on account of her absence from work in accordance with the provisions
of this Act, he shall be punishable with imprisonment which shall not be
less than three months but which may extend to one year and with fine
which shall not be less than two thousand rupees but which may extend
to five thousand rupees:

Provided that the court may, for sufficient reasons to be recorded in

writing, impose a sentence of imprisonment for a lesser term or fine
only in lieu of imprisonment.

(2) If any employer contravenes the provisions of this Act or the rules
made thereunder, he shall, if no other penalty is elsewhere provided by
or under this Act for such contravention, be punishable with
imprisonment which may extend to one year, or with fine which may
extend to five thousand rupees, or with both:

Provided that where the contravention is of any provision regarding

maternity benefit or regarding payment of any other amount and such
maternity benefit or amount has not already been recovered, the court
shall, in addition, recover such maternity benefit or amount as if it were
a fine and pay the same to the person entitled thereto.]

22. Penalty for obstructing Inspector.- Whoever fails to produce on

demand by the Inspector any register or document in his custody kept
in pursuance of this Act or the rules made thereunder or conceals or
prevents any person from appearing before or being examined by an
Inspector shall be punishable with imprisonment 1*[which may extend
to one year, or with fine which may extend to five thousand rupees], or
with both.

23.Cognizance of offences.

2*[23. Cognizance of offences.- (1) Any aggrieved woman, an office-

bearer of a trade union registered under the Trade Unions Act,
 1926 (16 of 1926) of which such woman is a member or a voluntary
organisation registered under the Societies Registration Act, 1860
(21.of 1860) or an Inspector, may file a complaint regarding the
commission of an offence under this Act in any court of competent
jurisdiction and no such complaint shall be filed after the expiry of one
year from the date on which the offence is alleged to have been
committed.

(2) No court inferior to that of a Metropolitan Magistrate or a

Magistrate of the first class shall try any offence under this Act.]

24.Protection of action taken in good faith.

24. Protection of action taken in good faith.- No suit, prosecution or

other legal proceeding shall lie against any person for anything which is
in good faith done or intended to be done in pursuance of this Act or of
any rule or order made thereunder.

25.Power of Central Government to give directions.

25. Power of Central Government to give directions.- The Central

Government may give such directions as it may deem necessary to a
State Government regarding the carrying into execution of the
provisions of this Act and the State Government shall comply with such
directions.

26.Power to exempt establishments.

26. Power to exempt establishments.-If the appropriate Government is

satisfied that having regard to an establishment or a class of
establishments providing for the grant of benefits which are not less
favourable than those provided in this Act, it is necessary so to do, it
may, by notification in the Official Gazette, exempt, subject to such
conditions and restrictions, if any, as may be specified in the
notification, the establishment or
396.class of establishments from the operation of all or any of the
provisions of this Act or of any rule made thereunder.

27.Effect of laws and agreements inconsistent with this Act.

27. Effect of laws and agreements inconsistent with this Act.- (1)
The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law or in the terms of any
award, agreement or contract of service, whether made before or after
the coming into force of this Act:

Provided that where under any such award, agreement, contract of

service or otherwise, a woman is entitled to benefits in respect of any
matter which are more favourable to her than those to which she would
be entitled under this Act, the woman shall continue to be entitled to
the more favourable benefits in respect of that matter, notwithstanding
that she is entitled to receive benefits in respect of other matters under
this Act.

(2) Nothing contained in this Act shall be construed to preclude a

woman from entering into an agreement with her employer for granting
her rights or privileges in respect of any matter which are more
favourable to her than those to which she would be entitled under this
Act.

28.Power to make rules.

28. Power to make rules.- (1) The appropriate Government may,

subject to the condition of previous publication and by notification in the
Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the

foregoing power, such rules may provide for--

(a) the preparation and maintenance of registers, records and muster-

rolls;

(b) the exercise of powers (including the inspection of establishments)

and the performance of duties by
Inspectors for the purposes of this Act;

(c) the method of payment of maternity benefit and other benefits

under this Act in so far as provision has not been made therefor in this
Act;

(d) the form of notices under section 6;

(e) the nature of proof required under the provisions of this Act;

(f) the duration of nursing breaks referred to in section

11;

(g) acts which may constitute gross misconduct for purposes of section
12;

(h) the authority to which an appeal under clause (b) of sub-section (2)
of section 12 shall lie; the form and manner

397.in which such appeal may be made and the procedure to be

followed in disposal thereof;

(i) the authority to which an appeal shall lie against the decision of the
Inspector under section 17; the form and manner in which such appeal
may be made and the procedure to be followed in disposal thereof;

(j) the form and manner in which complaints may be made to

Inspectors under sub-section (1) of section 17 and the procedure to be
followed by them when making inquiries or causing inquiries to be made
under sub-section (2)
of that section;
 (k) any other matter which is to be, or may be, prescribed.

(3) Every rule made by the Central Government under this section shall
be laid as soon as may be after it is made, before each House of
Parliament while it is in session for a total period of thirty days which
may be comprised in one session 1*[or in two or more successive
sessions, and if, before the expiry of the session immediately following
the session or the successive sessions aforesaid,] both
Houses agree in making any modification in the rule or both Houses
agree that the rule should not be made, the rule shall thereafter have
effect only in such modified form or be of no effect, as the case may be;
so however that any such modification or annulment shall be without
prejudice to the validity of anything previously done under that rule.

29.Amendment of Act 69 of 1951.29. Amendment of Act 69 of 1951.-In

section 32 of the Plantations
Labour Act, 1951,--

(a) in sub-section (1), the letter and brackets "(a)" before the words "in
the case of sickness", the word "and"
after the words "sickness allowance" and clause (b)
shall be omitted;

(b) in sub-section (2), the words "or maternity" shall be omitted.

30. Repeal.- On the application of this Act--

(i) to mines, the Mines Maternity Benefit Act, 1941 (19 of

1941) and

(ii) to factories situate in the Union territory of Delhi, the Bombay

Maternity Benefit Act, 1929 (Bom. Act VII
of 1929) as in force in that territory, shall stand repealed.