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Published : June 02, 2017 | Author : nirali
Category : Miscellaneous | Total Views : 1746 | Rating :

  
nirali
My name is Nirali Deepak Parekh. I am a student of Shri Vile Parle Kelvani Mandal's Pravin Gandhi College Of Law,( 5 years course) at Vile Parle, Mumbai. I am currently in my third year of BLS;LLB.
 

Maternity Amendment Act

The journey of a woman from the initial phase, that is from her birth till the time she ceases to exist involves hardship and hindrances. From being a child, then a teenager, later an adult, then a married woman to lastly being a mother, the entire duration isn’t a smooth flowing and an effortless one. A woman during her lifetime has to survive through bumps and hurdles be it her childhood, career, marriage and most pivotal of all the motherhood. The struggle to sustain along with providing subsistence for herself indeed requires a lot of courage and potential on a woman’s part. The time span of a woman from ‘cradle to grave’ is engulfed with impediments and hassle.

Motherhood, precisely is one of the most beautiful as well as the most memorable phase that a woman can ever experience. As we are all well versed with the famous quote “The hand that rocks the cradle rules the world”, it is an undisputed fact that the mother who raises the child has a greater impact on the child. It is she who plays a major role in helping him develop a good character and also prepares him to tackle the world outside. It is the mother who trains the child, imbibes in him necessary values and principles. The mother is the one who nurtures the child since the time it is born and then the process of training and developing him to be a better individual for the family and society continues. It is she who influences the child to a larger extent mainly during the formative years. She plays a vital role in shaping the personality of the child, irrespective whether the child in the later run turns out to be hard- working, successful or a sluggard. She has an important part to play in her child’s life as it is she who molds his character so that he becomes an achiever in the future. The growing child develops all his habits, nature and his conduct pertaining to the training given to him by his mother.

It is she who exercises tremendous amount of influence be it as a friend, teacher, companion etc. It is because of her teaching and the discipline inculcated which helps the child to pursue a good career and eventually achieve his goals. However, this doesn’t imply that the other members of the family including the father, siblings and even the grandparents have no influence on the child at all. Their training and teachings also do have an impact in the child’s life. But it is majorly, the mother who exerts highest amount of guidance on the child and undoubtedly she is someone whose position cannot be replaced nor effect can be denied by anyone.


Now, in today’s era, we have both the males as well as the females working to make a living. Having a glance at the male ratio, when it comes to work, be it before marriage or even after, has always been substantially consistent since they don’t really have any obstacles on their way in comparison with the females. The men, most evidently do have to carry the major burden of responsibilities on their shoulders to support their families including the wife, parents and children. But when it comes to the women, especially when they are expecting and even after they conceive, it relatively becomes troublesome for them to continue working. At times many women have to go through a lull in their careers, the reason being pregnancy. It becomes difficult for female employees to stay engaged with work in the due course of their employment or practice their respective professions or run their business as a sole entrepreneur when she is pregnant. Pregnancy is sometimes considered to be a ‘career killer’ as it acts as an interference in a woman’s life.

But women today, have grown and evolved as stronger and firm- headed individuals. They have emerged as optimistic and well- equipped personalities, knowing how to prioritize things in their lives, including what they wish to have and how they plan to proceed ahead.It is high time we strive hard to combat the perception that “Pregnancyis a career break and it acts as a barrier for a woman when it comes to pursuing her goals.”

What is Maternity Leave?

Maternity Leave is basically the period when a new mother takes off from her work for the birth of the baby. All the female employees are legally entitled to this right and they cannot at any cost be deprived of the same .
The Maternity Benefit Act 1961 was mainly enacted to maintain stability of women in employment in different areas like factories, mines, plantations and shops and other different establishments employing ten or more persons, for specific periods before as well as after child birth, to provide for maternity and other benefits. The 44th session of the Indian Labour Conference had put forth a recommendation to elevate the period of maternity leave under the Act from twelve weeks to twenty- four weeks for the benefit of the female employees. Then later during the 45th and 46th session of the ILC (Indian Labour Conference) this proposal for the enhancement of maternity leave was reiterated. Based on the constant requests and urge from ILC and other different quarters along with proper discussions with the stakeholders, it was finally decided to amend the Maternity Benefit Act 1961.

Introduction of the Maternity Benefit (Amendment) Act 2017

The Maternity Benefit (Amendment) Bill 2016, which is an amendment to the Maternity Benefit Act 1961 was passed in the Rajya Sabha on 11th August 2016, later in the LokSabha on 9th March 2017, and then received the President’s approval on 27th March 2017.

The various provisions of the Maternity Benefit Amendment Act 2017, became operative from 1st April 2017. However, the provision on crèche facility ( Section 11 A ) shall come into force from 1st July 2017.

Applicability
The provisions of this Act are applicable to all the various establishments including factories, mines, plantations, other Government establishments, shops, and all foundations under the pertinent legislations , or any other kind of establishment which the Central Government has notified.
It is one of the few acts that is applicable to the States of Jammu and Kashmir.

Eligibility
To avail the benefits under this Act, a woman should have been working in a particular establishment for a period of at least eighty days in the past twelve months.
The payment during the leave period is based on the average daily wage for the actual period of the absence of the woman during the employment.

New inclusions in the Amendment Act
1. Increase in the Maternity Benefit [Sec 5(3)]: The period of maternity leave for which a woman employee is entitled to be actually paid, has been upgraded to twenty- six weeks.The same is viewed to be profitable to about 1.8 billion women. However, this is only applicable to the establishments employing ten or more people. The Act earlier permitted a pregnant woman employee to utilize Maternity Benefit only six weeks prior to the date of expected delivery. Now, this duration has been enhanced to eight weeks.

2. The third child is deprived of the increased maternity benefit [Sec 5 (3)] : The expansion in the maternity benefit , that is eight weeks pre and eighteen weeks post expected delivery date is only available for the first two children. But when it comes to the third child, the woman shall only be entitled to twelve weeks of paid maternity leave , that is six weeks pre and six weeks post expected date of delivery.

3. Advantage given to Commissioning mother [Sec 5 (4)] :
“Commissioning mother: A biological mother who uses her egg to create an embryo implanted in any other woman”.
This provision mainly implies that even if latest modern technology is used, through surrogacy, it is only the biological mother who is entitled to avail this escalated benefit of maternity leave. However, the allocation of maternity leave in this case shall be for a period of twelve weeks and the same commences from the date the child is handed over to her.

4. Significance given to “Adopting mother”[ Sec 5 (4)] : A woman who legally and going through appropriate procedures along with the completion of various formalities , adopts a child below the age of 3 months, shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to her.

5. [Sec 11 A ] Creche Facility: Each and every establishment consisting of fifty or more employees is under an obligation to have a crèche facility (within the prescribed distance from the establishment), either separately or along with other common facilities. The woman is also to be allowed four visits a day to the creche, including the regular rest interval.

6. Prior intimation: There is a compulsion and duty of every establishment or the employer to inform the women about the benefits that she can avail of under the Act.

7. Provision for working from home[ Sec 5 (5)] : If the nature of the work assigned to the woman employee is such that it would be acceptable to work from home, then she may be permitted to do so, provided she agrees to comply with the terms and conditions with the employer under whom she is working in the establishment. This provision shall come into force from 1st July 2017.

Clarification Awaited

1. Creche Facility

The Act which is amended stays mum in connection to the time frame upto which set up of the crèche facility can be extended to the woman employee. We wait for the government to frame proper rules in this regard. The amended act only discusses about the provision and the facility granted to the women to leave the child in the crèche. There is no mention about whether the father would also be permitted to do the same or not.

2. Work from Home

The Amended Maternity Benefit Act does sanction the woman employees and leaves it to their discretion to decide the period to work from home as per mutually agreed between her and the employer. But if adequate rules and regulations are framed in this aspect , it would provide more clarity .

3. Women already on Maternity Leave

There is an ambiguity when it comes to the applicability of the act to the women who are already on leave as on 1st April 2017 , when the 26 weeks benefit comes into force.
There is a question as to whether such women employees would be granted the additional benefit under the Act.

Disadvantages of the Act
1. The Maternity Benefit Amendment Act is not applicable to establishments employing less than ten employees or to the unorganized sector.
2.The Act does not create a provision for paternity leave.
3. The Act puts a burden on the employer as the expenditure of maternity leave and the expenses that would follow to grant crèche facility have to be borne by the employer alone.

The Government is expected to clarify certain aspects of the Maternity Benefit Amendment Act, so that it nullifies the loopholes which some provisions contain. Some people in the country are of the view that the Act might prove to be malignant and detrimental to the women resulting in scaling down their actual salaries in the employment to compensate higher expenditures of the maternity leave and also end up providing preference to the male candidates.

Concept of Paternity Leave

Paternity leave enables the father to be present during and after child- birth, which in turn would help to foster a strong relationship between the two . This would also be beneficial in increasing the bond of attachment , love and care between the two of them. The Central government has authorized a paternity leave policy that grants leave to an employee of the central government for a period of fifteen days, so that the father is able to take care of his wife and the new- born. This leave can only be utilized when the father has less than two surviving children, and he can use this leave before or within six months from the date of the birth of the child.

At the same time, it is provided that if the father does not take the advantage of the paternity leave during that period , it would be considered to be lapsed. He will be paid the leave salary equal to the amount drawn by him before taking the leave. This provision applies to the father even during the case of adoption.

This leave is authorized for the employees working in the government sector in India, and there is no law which directs the employees or makes it compulsory for those working in the private sector.

Importance of Paternity Leave

Paternity leave supports the father in developing a healthy relationship between him and the child. In the initial days just after the child – birth, it is the father’s duty to be with his wife and the child , so that he can take proper care of the two . It becomes difficult for the mother just after she has delivered , to manage all the responsibilities along with taking care of the new born all by herself. So it would be quite helpful for the mother if the husband could take a few days off from his work , and be present in the house to look after them.

Globally, it was Sweden who first introduced the concept of paternity leave a few decades ago.In UK, the father is entitled to take one or two weeks paid paternity leave when the child is born. The UK government has also provided that the father is eligible to get an additional twenty six weeks paternity leave, but only on the condition that the mother has to return back to work.

In Norway, the father is legally entitled to obtain two weeks paid leave when the baby is born, and also is authorized to take by law,an additional four weeks of paid leave before the child turns three. Therefore, here is it completely the prerogative of the parents as to how they wish to utilize the remaining weeks. For eg- The mother may take the entire leave, or the father can take it wholly, or both amicably can decide to work part time and share the leave granted to them . The employers in such a situation usually respect and thereby agree with the choice of both the parents.

Conclusion
Taking all the relevant aspects, be it of maternity or paternity leave into cognizance, wecan conclude that when a child is born , it becomes a matter of responsibility equally for both the mother as well as the father to give full attention to the child as well as leave no stone unturned in taking care and protecting the child .The mother and the father both have an important role in their child’s life. It is their duty to take out proper time for the child from their work and ensure that it does not suffer in any way , that is emotionally ( crying or cribbing- due to absence of parents in the house or lack of parental care on their part) or physically ( like by get infected by germs or diseases). The duty does not come to an end after giving birth , the same has to be followed by other endless responsibilities by both the parents.

Work, today occupies a vital place in every individual’s life be it a man or a woman. But when it comes to a working married couple who has a baby walking into their lives , it becomes necessary for them to plan their work and professions in accordance with the same. Maternity and Paternity leave has always and will continue to be a debatable issue throughout the country. Irrespective of the Government and the policies framed by them in this regard, it is crucial to take into consideration that because of the employment issues, work pressure, lack of satisfaction in the allowanceswhich they are paid every month or wages paid during the maternity or paternity leave should not in any way hamper the little one.

At the same time, surveys conducted in the country have analyzed the fact that it becomes difficult for the women employees to return to their jobs, or professions respectively after they have delivered a baby. The ratio of the women joining work after having a child is a little less. Though there arewomen as well who manage their work as well as their own families, including household chores etc but for the same she requires the support of the husband and other family members.

“ Pregnancy puts a woman’s career at a standstill ,” A Notion or a Reality? We cannot make a uniform statement. There is no backup to support it in totality nor substantial proof or verification to deny it wholly. Every family has different perceptions, different ways of living and the mindset also differs from family to family and individual to individual( be it husband or the wife) when it comes to work. The statistics are different in every society. It is completely subjective and the scenario varies everywhere.

The underlying reason behind the enactment of the Maternity Amendment Act is mainly to ensure that the women employees are benefitted by the provisions incorporated within the ambit of the act. It is also to assure that the new born gets the maximum time and attention from his mother and so the ‘ Work from home’ facility is made available to them. The crèche facility( day care) along with the permit allotted to the women to visit the same, is also one of the provisions of the act to confirm that the child is taken care of and maintained well which would leave the mother satiated.

As discussed above, we wait for the government to make the rules in certain provisions a little more clear to the citizens and fill up the lacuna in the same aspect.

Lastly, it would be our duty as responsible and educated individuals to at least endeavor to break the stereotype that “ Pregnancy is a juncture which makes a woman incapable , or to be explicit handicapped to climb the corporate ladder and achieve success .”

“ A child’s entry in a mother’s life is indeed precious and the most unforgetful phase that she couldever undergo, but at the same time we cannot let that entry compel her to compromise with her own dreams and desires.”

End Notes
1. http://www.labour.gov.in/whatsnew/maternity-benefit-amendment-act2017
2. http://www.lexplosion.in/maternity-benefit-amendment-act-2017-receives-presidential-assent/
3. https://www.corporate-cases.com/2017/04/maternity-benefit-amendment-act-2017.html
4. http://www.indiaparenting.com/pregnancy/117_5605/is-paternity-leave-allowed-in-india.html
5. https://anewlifeinnorway.wordpress.com/2013/12/04/norwegian-parental-benefits-vs-british-parental-benefits
6. http://www.ds-avocats.com/mailing/INDIA - Maternity Benefit.pdf
7. http://www.indiatimes.com/news/india/india-s-men-need-paternity-leave-as-much-as-women-need-maternity-leave-here-s-why-273509.html
8. ww.helplinelaw.com/family-law/MPBI1/maternity-leave-and-paternity-leave-benefits-in-india.html
9. ttps://gracepapers.com.au/dont-let-pregnancy-be-a-break-in-your-career/
10. http://www.worldpsi.org/sites/default/files/attachment/news/maternity_benefit_amendment_act2017__0.pdf

Writing award This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges




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