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Part A: Eligibility – Understanding the Scope and Applicability of the Maternity Benefit Act to non-profits and Employees of non-profits

Why a Primer on Maternity Benefit Act for Non-profits?

The Maternity Benefit Act is a key legislation that recognises the gender skewed dynamics of care giving for children in India and provides maternity entitlements to women and commiserating mothers, vis-à-vis their employers in India.

In our role as attorneys for non-profits in India, we at Pacta perceived a general misunderstanding and underestimation of applicability of the Maternity Benefit Act to non-profit institutions. So, we created this primer as a ready to use resource for non-profits to proactively support women employees and integrate maternity benefits as part of their organisational culture, fostering equitable workplaces that value both professional and personal responsibilities.

Copyright: Pacta 2025. All rights reserved. Published in India, April 2025.

Suggested Citation: “Pacta. Primer on Maternity Benefit Act for non-profits. Bengaluru, April 2025.”

Pacta is a social sector exclusive law firm and policy think tank bridging gaps in law and policy implementation through rigorous research.

Disclaimer: This primer aims to provide general guidance on navigating compliances under the Maternity Benefit Act for non-profits. For detailed advice, non-profits are encouraged to refer to the full text of the Act and its amendments and consult legal experts as needed. The authors are not liable for any errors or omissions.

Introduction

The Maternity Benefit Act, 1961 (the “MB Act”) aims to protect the employment of women during and after childbirth and provides them with maternity benefits. It ensures that women employees are entitled to paid leave and other benefits during this crucial period, allowing them to care for their child without fear of losing their jobs or income. The MB Act has been amended over the years, with significant changes introduced in the Maternity Benefit (Amendment) Act, 2017, to further enhance the benefits available to women employees

This primer is divided into four parts:

Part A: Eligibility– Understanding the Scope and Applicability of the Maternity Benefit Act

Part B: Entitlements – Rights and Benefits Under the Maternity Benefit Act

Part C: Compliance – Employer Responsibilities and Implementation Guidelines

Part D: Miscellaneous – Additional Provisions, Exemptions, and Special Cases

Part A: Eligibility – Understanding the Scope and Applicability of the Maternity Benefit Act to non-profits and Employees of non-profits

1. Who does the MB Act apply to?

The MB Act, inter alia, applies to:

  • Every shop and establishment employing ten or employees on any day of preceding twelve months;
  • Every factory, mine or plantation including factories, mines and plantations belonging to the government
  • Establishments where persons are employed for the exhibition of equestrian, acrobatic and other performances; and
  • Such other shops or establishments notified by the appropriate government.

Yes, the MB Act is applicable to any establishment, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months. Therefore, the MB Act will be applicable to non- profits, including trusts, societies or Section 8 companies that have 10 or more persons employed in their organisation.

Illustration 1:

Anita, works at X Foundation, a non-profit trust with 12 staff members. She is pregnant.

She applies for maternity leave but the organization hesitates, assuming the MB Act doesn’t apply to non-profit organizations.

The law mandates that any establishment with 10 or more employees—be it a trust, society, or Section 8 company—must provide maternity benefits.

Foundation grants Anita her rightful benefits.

Yes, the MB Act applies to part-time employees and consultants. It extends to women employed, whether directly or through any agency, for wages in any establishment. This includes contractual, casual, fixed-term employees, and consultants.

However, eligibility for maternity benefits under the Act requires a woman to have worked with the same employer for at least 80 days in the 12 months preceding her expected delivery date. The Delhi High Court in the case of Neelam Kumari vs The University Of Delhi & Ors emphasized that maternity benefits cannot be denied to a female employee solely because her employment is contractual.

Illustration 2:

Y Foundation employs 30 staff members, including Priya, a contractual graphic designer.

She becomes pregnant. Having worked for over 4 months in the past 12 months with the foundation, she applies for maternity benefits.

Under the MB Act all women employees— whether regular, contractual, or casual—are entitled to maternity benefits if they meet the 80-day work requirement.

Foundation grants Priya her rightful benefits.

To be eligible for maternity benefit, a woman must have worked for the employer for at least 80 days in the 12 months preceding the expected delivery date. Days when the woman was laid off or on paid holidays are counted towards these 80 days. The Delhi HC in the case of Dr. Baba Saheb Ambedkar Hospital Govt. of NCT of Delhi & Anr. vs. Dr. Krati Mehrotra, clarified that maternity leave must be granted even to employees on ad-hoc contracts, such as the respondent, who served for 89 days with multiple extensions.

Illustration 3:

Teena, who works as a full-time legal associate at X Foundation, is pregnant.

Her expected date of delivery is on August 15th, 2024. She has been working with the organization since January 1st, 2024. As of July 30th, 2024, she has already worked for 227 days in the 12 months preceding  her due date.

She is eligible for maternity benefits provided by her employer.

Yes, maternity benefits can extend beyond the contractual period, and non-profits are legally required to provide them if the employee meets the eligibility criteria under the MB Act, which is 80 days in the 12 months preceding the expected delivery date.

Illustration 4:

Y Foundation, a non-profit focused on women’s empowerment, hired Rina on a one-year contract from January to December.

In October, she was six months pregnant and applied for maternity leave starting in November.

Though her contract ended in December, she had already completed the required 80 days of work and was entitled to all the maternity benefits under the MB Act.

Maternity leave (before and after the pregnancy); (Q 7-8)

Payment of maternity benefits (wages); (Q 9)

Accommodations for working; (Q 10-12)

Medical bonus; (Q 13)

Leave for illness arising out of pregnancy, delivery, premature birth of child, or miscarriage; and (Q 14-16)

Post birth accommodations. (Q 17-18)

Maximum Maternity Leave Period: The maximum period for maternity leave is 26 weeks.

Pre-Delivery Leave: Out of the total 26 weeks, 8 weeks can be taken before the expected delivery date.

A woman is eligible to avail 26 weeks of maternity benefit leave for her first two children. If she has two or more living children, maternity leave is limited to 12 weeks only. Out of these 12 weeks, only 6 weeks can be taken before the expected delivery date.

Note – The limitation of two living children applies only to the 26 weeks of maternity benefit leave. Other entitlements, such as wages during the 12-week leave and accomodation benefits, are still available to a woman who already has two or more children.

Illustration 6

Dhiya, a Communication Manager at Y Foundation, is pregnant with her third child. She had given birth to twins previously and applied for maternity leave under the MB Act.

Since she already has two living children, her maternity benefit is limited to 12 weeks.

She is eligible to take 6 weeks before her expected delivery date, and the remaining 6 weeks after childbirth.

Every woman is entitled to her wages from her employer during her period of absence due to childbirth. This payment is based on her average daily wage for the days she takes leave before and after delivery, including the day of delivery. The average daily wage is calculated based on her earnings in the three months prior to her leave, or the minimum wage under the Minimum Wages Act, 1948, whichever is higher.

Total Earnings before Leave:

Over the three months before her leave, her total earnings amount to:

₹20,000 + ₹25,000 + ₹25,000 = ₹70,000

Average Daily Wage Calculation:

The average daily wage is calculated by dividing her total earnings from the preceding three months by 90 days

₹70,000/90 = ₹777.78 (average daily wage)

Daily Maternity Benefit:

Since Shreya’s daily wage of ₹777.78 is likely above the minimum wage set under the Minimum Wages Act, she is entitled to receive this amount as her daily maternity benefit. She will receive payment for the 26 week duration of her absence at the rate of INR 777.78 per day.

Illustration 7:

Shreya , who is a content writer in X Foundation earns INR 20,000 per month from January to March 31, 2025.

Thereafter, she gets a raise and starts earning INR 25,000 per month from April 1, 2025 onwards.

Shreya plans to avail her maternity leave starting June 1.

Her Total Earnings
(Over the three months before her leave): ₹70,000

Average Daily Wage: ₹777.78

A woman cannot work or be employed for six weeks following delivery, miscarriage, or medical termination of pregnancy. During pregnancy, she can request lighter duties that avoid physical strain, long hours of standing, or tasks that could harm her health or the foetus. This right applies one month before the expected delivery and during the six-week postpartum period if she does not take leave.

A woman who adopts a child below the age of three months or a commissioning mother (a mother through surrogacy) is entitled to 12 weeks of maternity leave. This period begins from the day the child is handed over to the adoptive or commissioning mother, ensuring they have time to bond with and care for the child.

Yes, if the nature of the woman's work allows, the employer must permit her to work from home after completing her maternity leave. The terms and duration of work-from-home arrangements are decided mutually between the woman and the employer, providing flexibility for the woman to balance her professional and personal responsibilities.

Yes, non-profits are required to pay medical bonus. The term "medical bonus" refers to a specific, legally mandated payment intended to support women during pregnancy and childbirth. If a woman is entitled to maternity benefits and her employer does not provide free medical care during pregnancy and after childbirth, she is eligible to receive a medical bonus of [INR 3,500]. This bonus is intended to compensate for the lack of medical support and is revised by the relevant State Government or Central Government. Please confirm the latest bonus with a local counsel or through government notifications.

Yes. A woman suffering from illness due to pregnancy, delivery, premature birth, miscarriage, medical termination of pregnancy, or a tubectomy operation is entitled to one month of leave with wages at the rate of maternity benefit. This leave is in addition to the maternity benefit leave available to her. This extra leave is available upon production of prescribed proof and is intended to cover any illness specifically arising from the conditions mentioned above.

Yes, maternity benefits can extend beyond the contractual period, and non-profits are legally required to provide them if the employee meets the eligibility criteria under the MB Act, which is 80 days in the 12 months preceding the expected delivery date.

Illustration 8:

Sunita, a school teacher, experienced a miscarriage and submitted the required medical proof to her employer.

She was granted six weeks of paid leave at her regular maternity benefit rate, allowing her time to recover without financial stress.

If a woman gives birth to a stillborn child or the child dies upto 28 days after birth, special maternity leave of 60 days shall be granted to the woman.

These 60 days shall be in addition to the maternity leave already taken by the woman upto the date of death of the child.

Illustration 9:

Priya is due to give birth on May 15 and has availed her maternity benefit leave since April 1.

She delivers a still- born child. Priya is entitled to 60 days of special maternity leave from May 15.

Part A Page 11

Women returning to work after delivery are entitled to two nursing breaks a day, in addition to their regular rest periods, for up to 15 months after childbirth. These two nursing breaks are in addition to the woman’s regular lunch break.

Yes, establishments with 50 or more employees must provide a crèche facility and allow women four visits to the crèche per day, including rest breaks. For the purposes of calculating 50 employees, permanent, contract, daily wages and temporary employees are included. The creche facility is provided for employees with children older than 6 years. The employer is obligated to provide one crèche for every 30 children availing the facility. The law is however unclear on whether an employer is to provide the creche on a free basis or paid basis. A common practice is for non-profits to provide the creche facility at subsidised rates.

Parameters for creche facility:

The crèche should be built within the establishment or within 500 meters from the entrance of the establishment with materials such as lime plaster, cement, etc. The crèche is to be built on the basis of 5 sq.ft. of floor area for each child in the crèche with a minimum of 150 sq. feet in aggregate. Each crèche facility is also required to have a kitchen, space for washing/ drying and an adjacent washroom in the ratio of 1 to every 20 children. The crèche should not be situated where there are establishments emitting obnoxious gases, dust, odour or loud noise. The amenities that need to be made available within the crèche such as milk, refreshments, uniforms, soap, etc. The creche must also have an attendant.

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