Maternity Benefits in India: Leave, Pay & Workplace Rights Explained

Q: Can an employer force work-from-home instead of leave?

No, maternity leave is a legal right under Section 60(5) of the Code on Social Security, 2020. Work-from-home can only be offered with the employee's consent, not imposed.

Q: What if the establishment is covered under ESI?

If an establishment is covered under the ESI framework, maternity benefits are generally paid through the ESIC instead of directly by the employer, subject to contribution requirements under Sections 32 and 61 of the Code on Social Security, 2020.

Pregnancy changes a lot more than just daily routine. It affects a person physically, emotionally, and financially, and recovery does not end once the baby is born. Between medical recovery, caring for a new born, and adjusting to a completely new phase of life, balancing work at the same time can become overwhelming.

Maternity benefits are legal protections meant to support employees during pregnancy and childbirth, while ensuring that health, income, dignity, and job security are not compromised in the process.

Even with legal protections in place, many women still do not fully know their maternity rights or hesitate to use them because of workplace pressure and fear of being treated differently. In many cases, maternity leave is seen as an inconvenience rather than a normal and protected part of working life. Awareness therefore becomes extremely important. Maternity benefits are legal rights designed to ensure that no one is forced to choose between motherhood and financial security.

Legal Framework Governing Maternity Benefits in India:

Maternity Benefit Act, 1961 — Applies to women working in establishments covered under the Act who are not receiving maternity benefits through the Employees’ State Insurance (ESI) framework.
Employees’ State Insurance Act, 1948 — Maternity benefits are paid through the Employees’ State Insurance Corporation (ESIC) instead of directly by the employer.

These laws have now been consolidated under the Code on Social Security, 2020 (Social Security Code).

Which Rules Apply?

The law that applies will depend mainly on:

the type of establishment,
the number of employees working there,
and whether the employee is covered under the ESI framework.

Step 1: Is the workplace covered?

Type of Establishment	Which system usually applies?
Workplace with 10+ employees¹	Maternity benefit provisions generally apply
Workplace covered under ESI²	Benefits are usually paid through ESIC
Workplace not covered under ESI³	Employer pays maternity benefits directly

Step 2: Who counts as an employee?

The law does not look only at permanent staff. Employers cannot avoid maternity obligations simply by hiring workers on temporary contracts. While calculating employee strength, establishments also have to include:

Permanent Employees
Contractual Workers
Fixed-term Employees
Casual Employees (in many cases, depending on eligibility)

Courts have repeatedly clarified that maternity benefits are not restricted only to regular employees. Contractual and casual employees can also claim maternity benefits if they satisfy the legal requirements.⁴

Step 3: What about gig and platform workers?

The Social Security Code also brings gig workers, platform workers, and unorganised workers within the broader social security framework for the first time. However, the exact maternity-related benefits available to such workers will depend on schemes notified by the government.⁵

How Much Maternity Leave Do You Get?

1. Biological mothers

26 weeks of paid maternity leave for first two children; and
12 weeks of paid maternity leave for third child and onwards ⁶

Out of the 26 weeks, up to 8 weeks can be taken before the expected delivery date. Further, it has been clarified that the state population control policy cannot override a woman’s fundamental right to health, safe motherhood, and dignity under Article 21.⁷ Therefore, even if a state policy disqualifies a government employee, who has a third, from receiving paid maternity leave, that provision cannot override the previous act.⁸

2. Adoptive mothers

12 weeks of leave starting from the date the child is handed over

The law originally restricted this benefit to adoption of children below 3 months of age. However, in Hamsaanandini Nanduri v. Union of India⁹, the Supreme Court struck down this restriction as unconstitutional and discriminatory. Notably, in the same judgment, the Supreme Court also urged the Union Government to introduce a statutory paternity leave framework as a social security benefit, recognising that enabling fathers to participate meaningfully in early childcare advances gender equality in caregiving.

3. Commissioning Mothers (Surrogacy)

12 weeks of leave from the date the child is handed over

Maternity leave is meant to facilitate the bonding of the mother and her newborn child, not just to allow physical healing from delivery. Therefore, the woman who herself did not undergo physically into pregnancy and childbirth can apply for the maternity leaves.

4. Miscarriage or Medical Termination of Pregnancy

6 weeks of paid leave immediately after a miscarriage or medical termination of pregnancy.¹⁰

This is separate from regular maternity leave and is available upon producing medical proof. This is an absolute social security right.¹¹ An employer cannot ask to exhaust your personal casual leave (CL) or earned leave (EL) balances for this period.¹²

Is Maternity Leave — A paid leave?

Yes. A woman is legally entitled to maternity benefit calculated on the basis of her average wages earned before the leave period. Broadly, the payment is calculated as¹³

Maternity Benefit = average daily wage × leave period

Average daily wage is generally calculated from the wages earned during the period immediately preceding the leave.¹⁴

This protection applies whether leave is taken pre or post-delivery. The benefits cannot be denied merely on the method of payment.¹⁵ Further, when calculating “maternity benefits” all working days of the week will be counted including Sundays and non-working days.¹⁶ If the fixed contract was set to expire right in the middle of her requested maternity leave, the woman is entitled to the full 26 weeks of paid leave.¹⁷

Three Rights Most Women Don’t Know About

Apart from maternity leave itself, the law also gives working mothers several additional rights that are often ignored in practice.

Right	What the law provides
Work-from-home option	A woman may request work-from-home after maternity leave if the nature of work allows it.¹⁸
Crèche facility	Establishments with 50 or more employees must provide crèche facilities. Mothers are entitled to four visits per day, including time for feeding and caring for the child. Rules generally require the crèche to be located within a reasonable prescribed distance from the workplace, commonly around 500 metres.¹⁹
Nursing Breaks	Two paid nursing breaks per day until the child turns 15 months old. These breaks are in addition to regular rest intervals and are fully paid.²⁰

Can you be fired during pregnancy or While on Maternity Leave?

No.²¹ A woman cannot be dismissed, discharged, or forced to resign because she is pregnant or on maternity leave. Employers are also prohibited from reducing pay or altering service conditions to her disadvantage.²² An employer cannot call a woman on maternity leave, with immediate effect, with the risk of being fired on failure to comply with the order.²³ Any provision terminating a woman from the job after the birth of the first child is unreasonable and violative of Article 14 of the Constitution.²⁴

If an employer is found guilty of illegally terminating a pregnant employee or denying her benefits, the company directors face a criminal charge carrying up to 6 months of imprisonment, a fine of up to Rs. 50,000, or both. ²⁵

What If Your Employer Refuses to Comply?

If an employer refuses to provide maternity benefits or violates your maternity rights, a complaint can be made to the Inspector-cum-facilitator appointed under the Social Security Code.²⁶ This has replaced the Local Inspector under the Maternity Benefit Act, 1961. The Inspector-cum-facilitator has a power to examine records, demand documents, investigate violations and direct payment of dues in appropriate cases.²⁷ An appeal can be filed against the order of the Inspector-cum facilitator within 60 days from the decision.²⁸ In cases, involving violation of fundamental rights, a petition can be filed before the High Court under Article 21 of the Constitution.

FAQs

1. Does maternity benefit apply to contract employees?

Yes, if a contract employee has worked at least 80 days in the 12 months before delivery, she is eligible for maternity benefits under the Act.

2. Can leave be taken before delivery?

Yes, maternity leave can be taken up to 8 weeks before the expected date of delivery, with the remaining period after childbirth.

3. What happens in case of miscarriage?

A woman is entitled to 6 weeks of paid leave immediately after a miscarriage or medical termination of pregnancy.²⁹ The employer cannot force her to exhaust her casual or earned leave for this period; it is an absolute statutory right upon producing medical proof.

4. Can an employer force work-from-home instead of leave?

No, maternity leave is a legal right. Work-from-home can only be offered with the employee’s consent, not imposed.³⁰

5. What if the establishment is covered under ESI?

If an establishment is covered under ESI framework, the maternity benefits are generally paid through the ESIC instead of directly by the employer, subject to contribution requirements under the scheme.³¹

6. Is there any paternity leave under this law?

No, the maternity benefit framework applies only to women employees. However, in Hamsaanandini Nanduri, the Supreme Court itself urged the Union Government to introduce a statutory paternity leave framework as a social security benefit. Separately, the Delhi High Court has held that male employees in unaided recognized private schools have a legal right to paternity leave, just like government school staff, and directed the school to refund salary deductions for such leave.³²

Conclusion

Maternity benefits are legal protections that recognise the physical, emotional, and financial impact of pregnancy and childbirth. These rights exist to ensure that no one is forced to choose between parenthood and job security. However, rights are only meaningful when people know about them and feel confident enough to use them. Even today, many employees hesitate to ask for maternity support because of misinformation, workplace pressure, or fear of being treated differently.

Ultimately, maternity law is about creating workplaces that treat pregnancy and caregiving as a normal part of life, not a professional disadvantage. Real awareness and proper enforcement are what turn these protections from legal text into meaningful support.

With research assistance from: Shreyansh Raj, 2nd Year Student, NLSIU Bangalore.

1. Section 1(5) read with First Schedule of the Social Security Code, 2020

2. Section 1(5) and Section 32(1)(b) of the Social Security Code, 2020

3. Section 61 of Social Security Code, 2020

4. MCD v. Female Workers (Muster Roll), (2000) 3 SCC 224

5. Section 109, 114 and 45 of Social Security Code, 2020

6. Section 60(3) of Social Security Code, 2020

7. K. Umadevi v. State of T.N., 2025 SCC OnLine SC 1369

8. K. Umadevi v. State of T.N., 2025 SCC OnLine SC 1369

9. Hamsaanandini Nanduri v. Union of India, 2025 SCC OnLine SC 3184

10. Section 65 of Social Security Code, 2020

11. Section 59(1) of Social Security Code, 2020