This article has been written by Sarvesh P. Giri. Sarvesh is a Bachelor’s of Engg in Electronics and Telecommunication, 2015 batch from Mumbai University and pursuing LL.B. from Gopaldas Jhamatmal Advani Law College, Mumbai.
The women or the females have been the foundation for the initiation, establishment and furtherance of any existence in this universe. Initially, in India there was a dastardly attitude towards the female section of the society and that they were treated with merely as a reproduction unit but, now with the advancements in education, the approach has had a gradual change and that now the females are vested with certain liberties in every aspect as for instance; education and work.
Upon being granted these liberties, the women were succumbed to various issues and apprehensions because though they were granted liberties, there were certain biological issues which needed great attendance and that the same were matters of great sensitivity i.e. of the maternity.
A woman, considered as a revered entity in this universe, is gifted or imbibed with a special gift of reproduction for the furtherance of a family tree. Initially, in the archaic period, the women who stayed back home as she was not allowed to step out of the defined boundaries of the abode and that she was bearing a child in her womb was tendered and taken care of by the other members of the family parsimoniously. But in today’s era where women are excelling in every field and aspect ranging from cooking to running a family to administering a business or being employed in a Multi-National Company, the physical appearance of the females which enables them to bare babies in their womb and which is also a cause of hindrance in their careers or at workplaces as it is the matter of their subsistence.
Hence, upon considering to what is stated hereinabove, the Central Government articulated the most essential statute i.e. THE MATERNITY BENEFITS ACT, 1961, with the primary purpose to protect the race of women bearing such a big responsibility.
THE ESSENCE OF MATERNITY BENEFITS ACT, 1961:
The women stepping out of the defined boundaries of their abode are still vested with the natural gift of baring babies in their womb and that they were still needed protection in furtherance of their responsibility. They still needed certain expressed relaxation in order to carry out their maternal functions, hence in pursuance of the same the statute acted a boon for them thereby protecting their lives and race.
The statute articulated certain sections which very not only were in the interest of the females but also for the betterment of them having a pragmatic approach towards this biological matter.
Generally, when a woman is pregnant, the most essential question that takes over her mind is that what will she do of her job or will she be able to work bearing this responsibility in her womb and if yes, then how? But now with the enactment of this statute, females are entitled to certain relaxations during their pregnancy and that this statute creates mandatory obligations upon the employer to exercise the same in pursuance of the sections articulated in the Maternity Benefits Act, 1961.
As per this Act, the female employee having worked for a period of more than 160 days (inclusive of the probation period) in any establishment upon issue of notice to the employer of the establishment as defined under section 6 of this Act is entitled to a leave of 12 weeks i.e. 6 weeks prior to date of delivery including date of delivery and 6 weeks post the date of delivery as defined under section 4 of the said Act wherein the females are prohibited employment during the period of their pregnancy.
The other big question arising in the mind of a pregnant women is about the exorbitant medical expenses which one needs to bear during and post delivery. Therefore, this question was essentially also considered at the time of framing and enactment of this Act whereby any female employee being pregnant is entitled to disbursement of her wages at a rate of average daily wages immediately preceding and including the day of delivery and six weeks after the date of delivery, as articulated in section 5 of the said Act. The expression “wages” in this section of the said Act is valuated as the average of a women’s wage payable to her for the days she had worked during the period of 3 calendar months from the date from which she absents herself for the purpose of maternity.
CONSTITUTIONAL VALIDITY OF THE MATERNITY BENEFITS ACT, 1961:
The basic foundation of all the laws and statute in India is the Constitution of India having its foundation in year 1947 protecting the fundamental rights of every individual and embarking principles which every individual falling in the purview of citizenship under the said constitution.
In respect the constitution validity of this Act, the Central Government has enacted this Act keeping into mind the postulates articulated in the constitution.
The purpose of this Act is in consonance to the postulate articulated in this Constitution which ensures protection of the women and ensures their existence. Article 15(3) safeguards the rights of the women and their health. Similarly, the Article 39 which is a mandatory obligation upon the State to make policies in order to secure the economic justice wherein more particularly Article 39(e) which ensures health and strength to workers and also 39(f) wherein children are prohibited from material abandonment. This Act is also in consonance with Article 43A(3) and that this Act stands appropriate in all respect.
DOES THE EXPRESSION “WOMAN” ONLY MEAN THE FULL TIME FEMALE EMPLOYEE OR A FEMALE ON MUSTER ROLL OR REGISTERED SECURITY GUARD IN THE ESTABLISHMENT CAN ALSO FALL WITHIN THE AMBIT OF SAID ACT:
Considering the definition of “woman” under the maternity benefits act, 1961 means any woman employed be it directly or indirectly through any agency for wages in any establishment. But the question, that does this Act include the females in muster roll and the same question was answered in the leading case law of
Municipal Corporation of Delhi V/S Female Workers (Muster Roll)
wherein the Union of female workers filed a claim that the Municipal Corporation of Delhi employs ample no of female workers on muster roll basis and that the recruited were made to work together with the employees against the perennial nature. They further stated that the nature of work carried out by the recruited employees was of the same nature as that of the perennial nature and that the muster roll females have been employed with the Municipal Corporation since years and that they have been assisting the Corporation in carrying out the work of digging trenches, construction,etc., but, however, theirright to maternity leave was waived off every time they made a request for one.
The Corporation in their written statement in support of their stand states that a female employed in perennial nature of employment in an establishment is entitled to a maternity leave and as such the said muster roll females were not as they were on a daily wages basis.
However, the Court held that the females (muster roll) do fall in the definition of this Act as it has to be in consonance with the mandated provision of Constitution of India and that they do need protection and are entitled to maternity leave because the Corporation also falls under the purview of industry as rightly upheld in the case of Corporation of the City of Nagpur v. Its Employees and Others.
The other question that does a female security guard lie under this Act and is she entitled to maternity benefits, however this question was fetched with a judicious answer in the case of
Krantikari Suraksha Raksha V/S State of Maharashtra &ORS wherein it was held that women who are registered security guard employees shall be entitled to maternity benefit provided they are women under said Act and in such a case the payment of wages is by the board constituted u/s 6 of Maharashtra Private Security Guard (Regulation of Employment & Welfare) Act, 1981.
NEED FOR THE MATERNITY BENEFITS (AMENDMENT) BILL, 2016?
Though this Act was in consonance with the objectives and motives articulated in the Constitution of India, there was a need to bring about certain amendment to the principal Act because of certain prime reasons: –
- The principal Act limited only to females bearing children in their womb and that the said child is their own and not subject matter of any contract to anyone. But then with the unavoidable situation of the certain families where the females are forced into surrogacy also needed protection of the ground of humane condition at workplace and that their health needed protection for their existence.
- The period of 12 weeks mandated under the Principal Act was needed amendment because upon observing and considering the biological aspect of this issue, the body of females undergo wear and tear and that the stipulated time of 12 weeks seems inappropriate in order to heal the said wear and tear and that the said maternity leave was extended from 12 weeks to 26 weeks.
- The other prime reason for the said extension from 12 weeks to 26 weeks is that the new born is just stepped out into open and that this is the time when he needs the attendance of the parents be it a mother or a father or both. The female undergoing a period of pregnancy needs the utmost care during the seventh months of this period and it is the most crucial period for a woman.
- The amendment bill unlike the Principal Act articulates section which widens the scope of the Act i.e. beginning from biological children to adopted children and surrogacy children, and that the mother would be entitled for a 12 weeks’ maternity benefits from the date of adoption or date of surrogated child.
- The amendment also considered the rising medical expenses of a pregnant mother and that the amendment articulates that if a female employee, if functioning in an establishment and that her nature of job is such that she can continue from home,than the female can continue her operation upon mutual agreement with the employer of the employer, thereby felicitating the “work from home” concept.
- Add provisions to unable the mother to have a watch over the new born child and also to perform or operate in the establishment it is mandated in every establishment to set up crèche in within prescribed distances as may be mandated provided that there are 50 or more than 50 female employees in the establishment and that they are allowed to visit the crèche four times a day which was penned down as the Section 11A in the amendment bill.
VIEWS ON THE BILL;
This bill as amended on the guidelines of the Principal Act which was already into consonance with the basic foundation of any Statute in India. The Principal Act, though in perfect tune with the mandatory object of the Constitution of India, was amended because of certain discrepancies in the perfect sections and that these discrepancies grew gradually with the time and change in generation.
Upon perusing the aforesaid amendment, this bill was upheld by majority of parliamentarians as it was the need of hour and was the most needed bill and the most awaited bill by most of the females in the society because their health’s were prejudiced in pursuance of this maternal function. But this bill was contended by the employers as a maternity leave of 26 weeks prejudiced the operation and functions of their establishments. They stated that with this the females in the establishment would be on leave for a majority period of time and that their operations would go standstill thereby causing loss to them.
The amendment if perceived from a legal aspect stands appropriate and that is apt in all spheres and sub- spheres of legality not prejudicing any mandated provision of Constitution of India or any other Statute prevalent in India. Now considering the same bill on human grounds, it stands as a boon because it in no way prejudiced or harms the existence of female race in the society infact it is an essential step towards protecting them and their rights and also an assistance in performing their maternal functions.
This bill upon being perused with due diligence stands right in all respect and is definitely a boon to all females / women employed into any establishment ranging from a Parliament to an MNC to a labour job thereby widen or extending the purview of the Principal Act for females of the society.
- Constitutional Law of India – Dr. J.N. Pandey
- The Maternity Benefits Act, 1961 – Bare Act
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