Pregnancy and childbirth are natural events in the life of women of reproductive ages. Childbirth is a phase where women need both medical care and rest to recuperate. Apart from natural motherhood, adoption has been used as a means to enjoy motherhood. In the last couple of decades, reproductive technologies are also being increasingly used to enable infertile couples or single parents to have a child through surrogacy. It is important that the law protects motherhood in all its forms. The concept of paid maternity leave was hence introduced to enable mothers to bond with their child and also ensure that they get the required post-partum care following delivery.

Maternity leave leads to improved health outcomes for both the mother and the child. Studies have found a measurable positive impact of maternity leave on child health like improved immunization rates, reduced morbidities and strengthening of parental social bonds that have a positive impact on the mental health of the child.

Our Constitution mandates that all workplaces should make available just and humane conditions of work to its employees, including maternity leave for women. In pursuance of this Constitutional promise, the Maternity Benefit Act was enacted in 1961. The Maternity Benefit Act aimed to regulate the employment of women in establishments for certain periods before and after childbirth and provide for maternity and certain other benefits. The objective of the Act was to protect the dignity of motherhood by enabling a woman to take care of her health and also look after the health and well-being of her newborn child. The Act also aimed to ensure that a woman’s rights at work get protected while she is on leave at the time of childbirth. The 1961 Act applied to all establishments employing more than 10 persons and for women who have worked in an establishment for no less than 80 days in twelve months immediately preceding the date of her delivery. Women were entitled to a maximum paid leave of 12 weeks, of which six weeks were to be post-partum and a medical bonus.

The Maternity Benefit Act aimed to regulate the employment of women in establishments for certain periods before and after childbirth and provide for maternity and certain other benefits.

In spite of the Act mandating benefits in the form of leave and medical bonus, many women are denied these and their services have been terminated on reporting of pregnancy. The Courts have on various occasions upheld the rights of women who have been denied maternity benefits by upholding their right to a safe and discrimination-free work environment.

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In the Nargesh Meerza v.s Air India (AIR 1981SC1891) case, an air hostess challenged the service rules which required an air hostess to retire on marriage, if it occurred within four years of joining service, first pregnancy, or the age of 35, whichever occurred earlier. The basis for this rule was the emphasis laid on appearance, youthfulness and glamour of inflight attendants.

The Apex Court declared these rules as unreasonable and constitutionally void by holding that “We are unable to understand the argument of the Corporation that a woman after bearing children becomes weak in physique or in her constitution. There is neither any legal nor medical authority for this bald proposition. Having taken the Air Hostess in service and after having utilized her services for four years, to terminate her service by the Management if she becomes pregnant amounts to compelling the poor Air Hostess not to have any children and thus interfere with and divert the ordinary course of human nature….We are constrained to observe that such a course of action is extremely detestable and abhorrent to the notions of a civilized society….. Such a provision, therefore, is not only manifestly unreasonable and arbitrary but contains the quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of Article 14 of the Constitution”.

In the Neera Mathur v.s Life Insurance Corporation of India (AIR 392, 1991 SCR Supl. 2) 146), case the petitioner was terminated from service during the probation period without giving notice as she applied for maternity leave. The Corporation held that she had been terminated on two accounts. One, that her service was not satisfactory and two, she had not given accurate details in her declaration before taking up the job. These details included information regarding her pregnancy, last menstrual period, whether her periods are painful, number of conceptions and deliveries till date, etc.

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The Court held that details required in the declaration are embarrassing and humiliating. “Modesty and self-respect may perhaps preclude the disclosure of such personal details like whether her menstrual period is regular or painless, the number of conceptions taken place; how many have gone full term etc.” The Court went on to say that such columns in the declaration should be deleted. If the purpose of the declaration is to deny the maternity leave and benefits to a lady candidate who is pregnant at the time of entering the service, she could be made to undergo a medical examination including a pregnancy test.” The respondent was directed to take the petitioner back in service.

All these pronouncements clearly show that Courts have on various occasions’ upheld women’s right to equal opportunity and a workplace free of discrimination.

In the Municipal Corporation of Delhi v.s Female Workers (AIR 2000 SC 1274)case, daily wage workers of the Municipal Corporation made a demand for maternity benefits to be extended to them like regular employees as they were also compelled to undertake hard labour during pregnancy that could be detrimental to their health and health of the child.

The Court held that “A just social order can be achieved only when inequalities are obliterated and everyone is provided what is legally due. Women who constitute almost half of the segment of our society have to be honoured and treated with dignity at places where they work to earn their livelihood. Whatever be the nature of their duties, and the place where they work, they must be provided all the facilities to which they are entitled”. Benefits of the Maternity Benefit Act were extended to daily wage female employees.

In the P. Geetha v.s Kerala Livestock Development Board (W.P.(C). No. 20680 of 2014 H) case, the petitioner who was childless got a baby through surrogacy. She applied for maternity leave to look after the baby, but was denied leave on the ground that she had neither undergone pregnancy nor given birth.

The Court dismissed the argument stating that ‘there ought not to be any discrimination of a woman, as far as maternity is concerned only on the ground that she had obtained the baby through surrogacy.’ In doing so, maternity benefits were made available to a commissioning parent for child care.

The above pronouncements clearly show that Courts have on various occasions’ upheld women’s right to equal opportunity and a workplace free of discrimination.

In 2017, the Maternity Benefit Act was amended to increase the duration of paid maternity leave from 12 to 26 weeks for the first two children and for 12 weeks for children beyond the first two. The Act also made a 12 week maternity leave provision for adopting a child below the age of three months and for mothers commissioning a child through surrogacy. It also made it mandatory for establishments to provide for childcare facilities and permission to a mother to breastfeed her child.

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Anuja Gulati is a Gender Consultant at Population First.

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