Analysis: Maternity Benefit of Contractual Workers

As per the maternity benefit act, the maternity benefits are the rights of the working women and to provide them the benefits is the duty of the employer. Contractual employees and permanent employees are covered under the act. The purpose of this act is that working women can work at their workplace with dignity during the maternity period and this act also assures the right to life to the unborn child as excessive workload could cause health issues to the expecting mother and the unborn child also.


 The Maternity Benefit Act 1961 came into force on 12th December 1961.[1]   Before the act came into force there were different state-level acts regarding maternity benefits. As these state-level acts had their own rules regulations and provisions so it’s a complicated situation for those who migrate from one state to another state for jobs because they may not know the acts, provisions properly, or sometimes benefit provisions were different from one state to other states. So, there was a genuine need for uniform provisions regarding the maternity benefits for women employees.

To solve the critical situation The Maternity Act 1961 came into force. This act reduces diversity and brings uniformity regarding the benefits during the maternity period. It was so necessary to bring a uniform law so that all the women employees whether permanent or contractual if eligible under the act, can overcome the maternity period with dignity. So we can say that the Maternity Benefit Act 1961 act came into force to give special rights to women employees during their maternity period.

Objectives of the Act

This act gives the right to the women employee to claim the benefits from their employers. The purpose of the act is so that the women employees whether permanent or contractual if eligible under the act, can overcome the maternity period with dignity.

The Maternity Benefit Act 1961 was amended in 1972 and 1988 twice before and recently in 2017 also. The act amended by legislatures is more specific and clearer about the approach to the main purpose of the act.

Applicability of the Act

This act is applicable in the whole of India including Jammu & Kashmir.

Section 2 in The Maternity Benefit Act, 1961

2. Application of Act.—[2] 

(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 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 concerning shops and establishments in a State, in which 10 or more persons are employed, or were employed, on any day of the preceding 12 months:] Provided that the State Government may, with the approval of the Central Government, after giving not less than two month’s 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.


As per the maternity benefit act 1961, any working woman in an establishment if employed and worked for a minimum of 80days in the 12 months before the expected delivery date then is eligible to get maternity benefits from the employer.

Coverage of the Act

As per the Act, all the women employees whether employed directly or through any contractor i.e if a contractual employee also, except domestic women employees, are employed in an establishment where this act is applicable covered under the act. So such women can claim their maternity benefits from their employers.

Therefore from the above-mentioned data, we can conclude that whether the woman employee is directly employed or under contractual basis if she has fulfilled the eligibility criteria she can claim her maternity benefits from her employer.

Maternity benefits

Three types of benefits are generally given to women employees under this act

  1. Leave benefits
  2. Monetary benefits        and
  3. Creches facility ( this comes after the amendment in 2017 )

Leave benefits:

All employees are entitled to 52 weeks maternity leave .it is divided into 26 weeks of ordinary maternity leave and 26 weeks additional maternity leave.

Under the act, every women employee max 6 weeks before the expected date of delivery can apply for maternity leave. She, from the expected date of delivery 6weeks and before one month of the 6 weeks, will not do any job which can cause any health issue for her and her expected child. This restriction applies to both employer and employee.

For the first two children, the women employee can apply for 26 weeks leave but in the case of 3rd child, she can have only 12 weeks of maternity leave.

Monetary benefits:

The woman employee will get the maternity payment on an average daily wage.  Average Daily wage means, average daily wage payable to the woman worker during the last 3 calendar months immediately preceding the date from when she absents herself.[3]

Before going to maternity leave she will get the payment for the coming 6 weeks which is before the expected date of delivery and after the delivery, she has to produce proof of delivery and then will get the payment for the remaining 18 weeks. The employer must pay the remaining payment within 48hrs of notification from the woman employee regarding the birth of the child.

After the 26 weeks of maternity leave, the woman employee can ask for work from home option if so possible in the establishment. (this is as per the new amendment in 2017)

Creche benefits

As per the new amendment in 2017 where 50 or more employees are employed in aa establishment then women workers shall get creche facility. The woman employee will be allowed to visit the creche 4 times a day. The employer must allow the employee.

Every establishment should inform the maternity benefits available to the women employee at the time of appointment and it should be in writing.

The process to claim the Maternity Benefit

The woman who is an expecting mother and on the other side a working lady should inform the employer about her maternity leave period and It should be in writing. As she can claim her maternity benefit partially i.e. 6weeks leave payment before going for leave and the remaining 18 weeks payment after producing proof of delivery of the child, so she must inform the employer about her claims. This claim is her legal right.[4a]

 She can inform the employer before going on maternity leave and also after the delivery of the child. The notice should be in writing.

In case there arise any issue regarding the payment, as per the law the woman employee can complain to the Inspector. the inspector under this act can suo moto or under a complaint pass an order to the employer to clear all the maternity benefits.

Penalty for the contravention of the act

If the employer contravenes the act and fails to pay any maternity benefit to his woman employee, who is eligible to receive the benefits under the act then he may have to face imprisonment for at least 3 months which may be extended to 1 year and the fine amount is minimum 2000/- which may be extended to 5000/-.[5]

Issues against Contractual Women Employees

Employers sometimes deny the benefits to the contractual woman employees. On that ground, there is a landmark case of Rashida C H v. the State of Kerala where the Kerala high court, where the woman complains against the employer for denying her maternity leave on the ground that her job contract did not allow the grant because she is a contractual employee.

After hearing the case the Kerala high court state that “the maternity benefit is not merely a statutory benefit or a benefit flowing out of an agreement. This court consistently held that it is attached with the dignity of a woman…” so there should not be any distinction between a permanent employee and contractual employee.[6]

Another landmark case is Dr. Mandeep Kaur vs. Union of India. In this case, the Himachal Pradesh High Court held that contractual employees are equally entitled to maternity benefit as the permanent employees, the court held that “Even though, she was engaged on a contractual basis, yet, denial of, the benefit of maternity leave to her, would, tantamount, to infringement; being visited, vis-à-vis, the salutary purpose, behind Article 21, of the Constitution of India.” [7]

In the Maternity Benefit Act 1961, the leave benefit was 12 weeks which was amended up to 26 weeks and the contractual employees also covered under the maternity benefit act that also has very clearly highlighted now. The type of employment is not important here any woman employee who has worked in the establishment for the last 80 days in the 12 months is eligible to avail of the maternity benefit.

Such kind of landmark judgments which are passed on contractual employees shows the right path to the employees to claim their rights regarding maternity benefits.


Maternity leave is a legal right of every working woman who is eligible under the act. Taking maternity leave is also considered as the fundamental right to life. It is so normal that the pregnant lady just before and just after the birth of the child cannot take much workload. The Maternity Benefit Act gives assurance to the working woman regarding her job security, no employer can make the woman jobless on the ground that she is going through her maternity period. As the over workload can cause health issues of the fetus she carries in her womb so claiming the maternity benefits can be also the right of the unborn child of life.

So we can conclude by saying this on the topic that the maternity benefit act is for all the working women who are covered under the act and the benefits are for both permanent employees contractual employees. As the purpose of the maternity benefit act is to consider the right of life and the dignity of the woman at the workplace so the claims are not specific to any special type of employment-this right is for every working woman.


  • 1. When the maternity benefit act came into force in India?
  • 2.   Does the maternity benefit act applicable all over India?
  • 3.  What are maternity benefits?
  • 4.  Can the contractual workers also avail the maternity benefits under the maternity benefit act?
  • 5.   If a woman is eligible for a legal complaint against her employer in case of any maternity benefit related issues?


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