The Maternity Benefit Act, 1961

(1) This Act may be called the Maternity BenefitAct, 1961. (2) It extends to the whole of India 1***. (3) It shall come into force on such date2as may be notified in this behalf in the Official Gazette,-- 3[(a) in relation to mines and to any other establishment wherein persons are employed for theexhibition of equestrian, acrobatic and other performances, by the Central Government; and] (b) in relation to other establishments in a State, by the State Government.

1[(1) It applies, in the first instance,-- (a) to every establishment being a factory, mine or plantation including any such establishmentbelonging to Government and to every establishment wherein persons are employed for the exhibitionof equestrian, acrobatic and other performances; (b) to every shop or establishment within the meaning of any law for the time being in force inrelation to shops and establishments in a State, in which ten or more persons are employed, or wereemployed, on any day of the preceding twelve months:] Provided that the State Government may, with the approval of the Central Government, after givingnot 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 ofestablishments, industrial, commercial, agricultural or otherwise. (2)2[Save as otherwise provided in 3[sections 5A and 5B], nothing contained in this Act] shallapply to any factory or other establishment to which the provisions of the Employees State InsuranceAct, 1948 (34 of 1948), apply for the time being.

In this Act, unless the context otherwise requires,-- (a) "appropriate Government" means, in relation to an establishment being a mine, 1[or anestablishment wherein persons are employed for the exhibition of equestrian, acrobatic and otherperformances,] the Central Government and in relation to any other establishment, the StateGovernment; (b) "child" includes a still-born child; 2[(ba) "commissioning mother" means a biological mother who uses her egg to create an embryoimplanted in any other woman;] (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 orauthority appointed by the Government for the supervision and control of employees or where noperson or authority is so appointed, the head of the department; (ii) in relation to an establishment under any local authority, the person appointed by suchauthority for the supervision and control of employees or where no person is so appointed, the chiefexecutive officer of the local authority; (iii) in any other case, the person who, or the authority which, has the ultimate control over theaffairs of the establishment and where the said affairs are entrusted to any other person whethercalled a manager, managing director, managing agent, or by any other name, such person; 3[(e) "establishment" means-- (i) a factory; (ii) a mine; (iii) a plantation; (iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobaticand other performances; 4*** 5[(iva) a shop or establishment; or] (v) an establishment to which the provisions of this Act have been declared undersub-section (1) of section 2 to be applicable;] (f) "factory" means a factory as defined in clause (m) of section 2 of the FactoriesAct, 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; 6[(ha) "medical termination of pregnancy" means the termination of pregnancy permissible underthe provisions of Medical Termination of Pregnancy Act, 1971 (34 of 1971);] (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 orduring the twenty-sixth week of pregnancy but does not include any miscarriage, the causing of whichis 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 LabourAct, 1951 (69 of 1951); (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 thecontract of employment, express or implied, were fulfilled and includes-- (1) such cash allowances (including dearness allowance and house rent allowance) as awoman 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 fundor 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 inany establishment.

(1) No employer shallknowingly employ a woman in any establishment during the six weeks immediately following the day ofher delivery 1[, miscarriage or medical termination of pregnancy]. (2) No woman shall work in any establishment during the six weeks immediately following the day ofher delivery 1[, miscarriage or medical termination of pregnancy]. (3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a requestbeing made by her in this behalf, be required by her employer to do during the period specified insub-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, oris 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 herexpected delivery; (b) any period during the said period of six weeks for which the pregnant woman does not availof leave of absence under section 6.

1[(1) Subject to the provisions of this Act, every womanshall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of theaverage daily wage for the period of her actual absence, that is to say, the period immediately precedingthe 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 thewoman's wages payable to her for the days on which she has worked during the period of three calendarmonths immediately preceding the date from which she absents herself on account of maternity, 2[theminimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees,whichever is the highest]. (2) No woman shall be entitled to maternity benefit unless she has actually worked in anestablishment of the employer from whom she claims maternity benefit, for a period of not lessthan 3[eighty days] in the twelve months immediately preceding the date of her expected delivery: Provided that the qualifying period of 4[eighty days] aforesaid shall not apply to a woman who hasimmigrated 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 hasactually worked in the establishment, 5[the days for which she has been laid off or was on holidaysdeclared under any law for the time being in force to be holidays with wages] during the period of twelvemonths immediately preceding the date of her expected delivery shall be taken into account. 6[(3) The maximum period for which any woman shall be entitled to maternity benefit shall be7[twenty-six weeks of which not more than eight weeks] shall precede the date of her expected delivery:] 8[Provided that the maximum period entitled to maternity benefit by a woman having two or morethan two surviving children shall be twelve weeks of which not more than six weeks shall precede thedate of her expected delivery:] 9[Provided further that] where a woman dies during this period, the maternity benefit shall be payablepayable only for the days up to and including the day of her death: 10[ 11[Provided also that] where a woman, having been delivered of a child, dies during her delivery orduring the period immediately following the date of her delivery for which she is entitled for thematernity benefit, leaving behind in either case the child, the employer shall be liable for the maternitybenefit for that entire period but if the child also dies during the said period, then, for the days up to andincluding the date of the death of the Child.] 12[(4) A woman who legally adopts a child below the age of three months or a commissioning mothershall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed overto the adopting mother or the commissioning mother, as the case may be. (5) In case where the nature of work assigned to a woman is of such nature that she may work fromhome, the employer may allow her to do so after availing of the maternity benefit for such period and onsuch conditions as the employer and the woman may mutually agree.] STATE AMENDMENT Assam Amendment of Section 5 of Central Act 53 of 1961 (as amended by Assam Act 12 of 1964).--Inthe explanation appended to sub-section (1) of section 5 of the principal Act, as amended by the AssamAct 12 of 1964, the word “six” appearing after the words “multiplied by” shall be substituted by the word“seven”. [Vide Assam Act, 2 of 1984, s. 2.]