As a result of the patriarchal nature of Indian society, women often face a variety of pressures in her day to day lives because of the glorification of motherhood, and the ingrained connection between a woman’s identity & her position as a mother. Since the rise of capitalism, there has been a distinct separation of social reproduction activities (mostly unpaid caring in the home) from commercially productive activities, mostly in formal workplaces. As a result, this has strengthened conventional gender roles, putting women mostly in the unofficial home realm, where they provide care for others out of love and emotional commitment.

In today’s modern world, all genders are recognized for their equal capabilities, leading to increasing competition among them. Women empowerment is a dynamic concept, with women excelling in every field. However, women still face inherent challenges, such as balancing family responsibilities, especially during and after pregnancy. The Maternity Benefit Act of 1961, later amended in 2017, aims to address these challenges faced by women during the maternity period by providing necessary benefits and filling existing gaps. India aims to boost women’s workforce participation to align with its aspirations of economic progress. Despite women constituting nearly half of the population, their involvement in formal employment remains low. The 2017 amendment to the Maternity Benefit Act, which extended maternity leave from 12 weeks to 26 weeks, aimed to improve job market quality but raised concerns about potential job losses. However, the reliance solely on employers to provide benefits has inadvertently hindered women’s participation. Addressing this issue requires multifaceted strategies beyond legislative changes.

Maternity Benefit Act 1961 (2017)

In 1924, N.M. Joshi initiated efforts for maternity benefits in India, leading to the passage of the first Maternity Benefit Act in Bombay in 1929 and Madhya Pradesh in 1930. The Mines Maternity Benefit Act was the first nationwide legislation on the topic in 1941. In 1961, the Maternity Benefit Act was consolidated, covering the entire country with 30 sections. The Act aimed to regulate women’s employment conditions before and after childbirth, ensuring essential benefits like leave and wages. To avail of maternity benefits, women must have worked for at least 80 days in the twelve months preceding their expected delivery date, request light work at least ten weeks before delivery, provide a pregnancy certificate, notify their employer seven weeks before delivery, and make payments in advance. The Act also allows for six weeks of leave following a miscarriage and up to one month of additional leave for pregnancy-related illness, with recourse available to women deprived of benefits through an appeal process.

Recognizing the evolving needs of working mothers, the Maternity Benefit (Amendment) Act of 2017 was passed, increasing maternity leave to 26 weeks, providing specific provisions for childcare facilities, and addressing adoption and surrogacy concerns. The amended act emphasizes the importance of adapting laws to meet changing societal demands, marking a significant step forward from the original legislation enacted in the 1960s.

Lacunae in the Act.

Undoubtedly, the Maternity Benefit Act provides significant advantages to pregnant women during and after childbirth. However, the extension of maternity leave can adversely affect job opportunities for women. In India, the entire funding for a six-month maternity leave is borne by employers, leading them to favor male employees over female employees. Small and medium enterprises, in particular, feel burdened by the financial obligations associated with maternity leave and childcare provisions. Moreover, there is uncertainty regarding whether female workers will return to the same position, an alternative role, a project-based position, or be relegated to a sideline job after their maternity leave ends. This ambiguity can be mitigated through detailed counseling and discussion sessions for returning mothers.

While the amendment of the Maternity Benefit Act is a step forward in promoting gender inclusivity, it inadvertently perpetuates stereotypical views by placing the financial burden on private sector employers. This burden may prompt medium and small enterprises to revise their employment policies to minimize the impact of the legislation, resulting in a reduction of gender diversity in the workforce. According to a study conducted by Team Lease, the amendment could potentially lead to the loss of 1.1 to 1.8 million women’s jobs across various sectors. Additionally, the cost of compliance with the act, including providing paid leave and childcare facilities, is disproportionately high for small and medium enterprises, which employ a significant portion of India’s workforce.

Section 12 of the act prohibits employers from dismissing women on account of maternity leave or denying them benefits due to procedural irregularities. However, it does not address issues arising during the pre-employment or post-pregnancy periods. Employers may still terminate the services of pregnant women who receive maternity benefits. The cost of hiring and retaining women, including providing all benefits mandated by the act, is estimated to be 80% of their salary, making it more economical for organizations to hire male candidates.

The amendment has led to an increase in complaints to the National Commission for Women regarding women not receiving maternity benefits and facing termination or discrimination after reporting their pregnancy. While the 2017 amendment was a significant step forward, it failed to address certain issues such as paternity leave provisions and ambiguity regarding the timeframe of childcare facilities. Experts have criticized the act on the following grounds-

  1. Financial Burden on Employers: One of the primary concerns raised is that the entire funding for a six-month maternity leave is the responsibility of the employers. As a result, these businesses may perceive the extended maternity leave as a significant expense, leading them to favor hiring male employees who do not require such benefits.
  2. Uncertainty for Returning Mothers: The act does not stipulate whether female workers will be guaranteed the same position upon their return from maternity leave or if they will be offered alternative roles. This uncertainty can create anxiety and apprehension among women about their job security and career progression, leading to potential reluctance to take extended maternity leave or even dissuading them from returning to the workforce altogether.
  3. Negative Perception of Hiring Women: The significant cost associated with hiring and retaining women, including providing maternity benefits and establishing childcare facilities, may lead some employers to perceive hiring women as financially burdensome. This perception can contribute to gender bias in hiring practices.
  4. Increase in Complaints and Legal Issues: The act has sparked increased complaints to regulatory bodies, with women experiencing discrimination or termination potentially resorting to legal action, causing potential litigation and employer reputational damage.
  5. Ambiguities in the Act: The amendment aims to rectify ambiguities in the original legislation, such as the absence of paternity leave and unclear childcare timeframe, which can lead to legal disputes and disputes among employers and employees.

Overall, while the Maternity Benefit Act represents a significant step forward in promoting gender equality and supporting working mothers, its implementation has posed challenges and raised concerns about its impact on job opportunities for women. Addressing these issues requires a careful balance between protecting the rights of women and ensuring the sustainability of businesses, particularly smaller enterprises.

Recommendations & Suggestions.

  1. The absence of provisions for paternity leave disregards the importance of both parents’ involvement in nurturing their children, hindering gender equality and marital harmony. Including paternity leave provisions is essential to foster equality in parenting roles and enhance familial relationships.
  2. The existence of diverse laws governing maternity leave creates confusion and ambiguity, such as those found in the Employees State Insurance Act, of 1948. A unified Maternity Benefit Act is imperative to provide consistent regulations across all sectors, ensuring clarity and fairness for employers and employees alike.
  3. There is a need for clearer guidelines regarding various provisions such as crèche facilities and breastfeeding rules in the workplace. Enhancing clarity on these matters within the act will promote a supportive and conducive environment for working mothers.
  4. The Maternity Benefit Act imposes additional costs on companies without corresponding productivity, leading to employer discrimination and reinforcing gender inequality. Implementing government schemes to share the financial burden of maternity leave can alleviate concerns and promote fair treatment of women in the workforce.
  5. Conducting awareness sessions in both public and private sectors to encourage the equitable distribution of childcare duties among parents is crucial. These sessions aim to challenge stereotypes and promote gender equality in caregiving responsibilities among all stakeholders in society.
  6. The current scope and applicability of the act are unfavorable to women, particularly in small informal sectors. Expanding the act’s coverage to include all women, regardless of formal or informal employment, and establishing offices at district or primary health centers will enhance its effectiveness in protecting women’s rights.

Women have historically been marginalized, but legislative and judicial interventions have played a significant role in advancing gender equality and ensuring fair treatment. The Maternity Benefit Act was enacted to protect the interests of working mothers, reflecting the evolving role of women in society. However, amendments are needed to address existing loopholes and ensure the act’s effectiveness in benefiting pregnant women and safeguarding their rights.


Based on the presented facts, loopholes, and recommendations, it is evident that the Maternity Benefit Amendment Act of 2017 requires a significant reassessment due to its imbalanced ideology and practical limitations. Its primary flaw lies in its focus on employees within the modern employment sector, overlooking significant loopholes. Enacting an act that excludes the majority of women raises questions about its effectiveness. The act fails to address women in the unorganized sector, where a large portion of female workers are employed, thus benefiting only a small fraction of women. While legislation promoting equality may appear commendable on paper, organizations should embrace them voluntarily rather than viewing them as mere obligations. The government plays a pivotal role in encouraging organizations to recognize and adopt such benefits willingly. Legislative measures should strive to be inclusive and comprehensive while minimizing potential legal disputes.

India could draw inspiration from countries like the United States, where companies such as Netflix and Microsoft offer fully paid paternity leave for several months. With a population of nearly 1.2 billion, India must take significant steps to integrate half of its population into the broader economic framework, as neglecting this segment has severe repercussions on the national economy.

 A fair and just decree would not only help combat gender inequality but also contribute to maximizing the country’s demographic dividend, creating a win-win situation for all.

By- Esha Gandhi (Intern)

Leave a Reply

Your email address will not be published. Required fields are marked *

This field is required.

This field is required.


The following disclaimer governs the use of this website (“Website”) and the services provided by the Law offices of Kr. Vivek Tanwar Advocate & Associates in accordance with the laws of India. By accessing or using this Website, you acknowledge and agree to the terms and conditions stated in this disclaimer.

The information provided on this Website is for general informational purposes only and should not be considered as legal advice or relied upon as such. The content of this Website is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and the Law Firm. Any reliance on the information provided on this Website is done at your own risk.

The Law Firm makes no representations or warranties of any kind, express or implied, regarding the accuracy, completeness, reliability, or suitability of the information contained on this Website.

The Law Firm disclaims all liability for any errors or omissions in the content of this Website or for any actions taken in reliance on the information provided herein. The information contained in this website, should not be construed as an act of solicitation of work or advertisement in any manner.