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Section 5 Maternity Benefit Act 1961: Right to payment of maternity benefit

Section 5 (Right to payment of maternity benefit) of the Maternity Benefit Act 1961 —

❝(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.

 Explanation.—For the purpose of this sub-section, the average daily wage means the average of the woman’s wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 (11 of 1948) or ten rupees, whichever is the highest.

(2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than eighty days in the twelve months immediately preceding the date of her expected delivery:

 Provided that the qualifying period of eighty days aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration.

 Explanation.—For the purpose of calculating under this sub-section the days on which a woman has actually worked in the establishment, the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account.

(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twenty-six weeks of which not more than eight weeks shall precede the date of her expected delivery:

 Provided that the maximum period entitled to maternity benefit by a woman having two or more than two surviving children shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:

 Provided further that where a woman dies during this period, the maternity benefit shall be payable payable only for the days up to and including the day of her death:

 Provided also that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the Child.

(4) A woman who legally adopts a child below the age of three months or a commissioning mother shall be entitled to maternity benefit for a period of twelve weeks from the date the child is handed over to the adopting mother or the commissioning mother, as the case may be.

(5) In case where the nature of work assigned to a woman is of such nature that she may work from home, the employer may allow her to do so after availing of the maternity benefit for such period and on such conditions as the employer and the woman may mutually agree.❞



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Notes:

The Maternity Benefit Act, 1961 (No. 53 of 1961) was amended by:
- the Central Labour Laws (Extension to Jammu and Kashmir) Act, 1970 (No. 51 of 1970) (w.e.f. 01-Sep-1971);
- the Maternity Benefit (Amendment) Act, 1972 (No. 21 of 1972) (w.e.f. 01-Jun-1972);
- the Maternity Benefit (Amendment) Act, 1973 (No. 52 of 1973) (w.e.f. 01-Mar-1975);
- the Maternity Benefit (Amendment) Act, 1976 (No. 53 of 1976) (w.e.f. 01-May-1976);
- the Maternity Benefit (Amendment) Act, 1988 (No. 61 of 1988) (w.e.f. 10-Jan-1989);
- the Maternity Benefit (Amendment) Act, 1995 (No. 29 of 1995) (w.e.f. 01-Feb-1996);
- the Maternity Benefit (Amendment) Act, 2008 (No. 15 of 2008) (w.e.f. 15-Apr-2008);
- the Maternity Benefit (Amendment) Act, 2017 (No. 06 of 2017) (w.e.f. 01-Apr-2017).

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