Dear Seniors,
If an employee goes through miscarriage in 7th month of her pregnancy will she be able to get the maternity leave. If yes then for how many days as per the Maternity Benefit Act.
Please reply.
Thanks in advance.
Regards,
Anshu
From India, Gurgaon
4If an employee goes through miscarriage in 7th month of her pregnancy will she be able to get the maternity leave. If yes then for how many days as per the Maternity Benefit Act.
Please reply.
Thanks in advance.
Regards,
Anshu
From India, Gurgaon
Dear Anshu
As per the Maternity Act, 1961 Leave for Miscarriage: - in case if miscarriage or medical termination of pregnancy, a women shall, on production of such proof as may be prescribed , be entitled to leave with wages at the rate of maternity benefit, for a six weeks immediately following the day of miscarriage or, as the case may be, her medical termination of pregnancy.
From India, Kota
As per the Maternity Act, 1961 Leave for Miscarriage: - in case if miscarriage or medical termination of pregnancy, a women shall, on production of such proof as may be prescribed , be entitled to leave with wages at the rate of maternity benefit, for a six weeks immediately following the day of miscarriage or, as the case may be, her medical termination of pregnancy.
From India, Kota
Dear Mr. Akhil, Thanks for your reply. What does it mean 'as may be prescribed'. Does it mean whatever period prescribed by the doctor but should not exceed six weeks. Regards, Anshu
From India, Gurgaon
From India, Gurgaon
A per the MB Act 1961,employee will be eligible for maternity benefit for miscarriage occurring during or prior to 26th week of her pregnancy .7th month means 28th week. Varghese Mathew 09961266966
From India, Thiruvananthapuram
From India, Thiruvananthapuram
I have not come across any stipulation as to 26 th week in sec.(9) of teh Maternity Benefit Act. a woman employee is eligible for six weeks leave with wages(maternity benefit) for miscarriage immediately following the day of her miscarriage..Therefore a woman should be eligible for it even if she undergoes miscarriage in the 7th month
B.Saikumar
HR &Labour law Advisor
.
From India, Mumbai
B.Saikumar
HR &Labour law Advisor
.
From India, Mumbai
Mr Saikumar Please read the definition of 'miscarriage 'in section 2(j) of Maternity Benefit Act 1961. Varghese Mathew 09961266966
From India, Thiruvananthapuram
From India, Thiruvananthapuram
Dear Verghese Mathew,
You are right, I missed the definition.Accordingly miscarriage to entitle a woman for leave under the Act shall occur during the period prior to or during the twenty sixth week of pregnancy. Thanks for bringing this to my notice..
B.Saikumar
From India, Mumbai
You are right, I missed the definition.Accordingly miscarriage to entitle a woman for leave under the Act shall occur during the period prior to or during the twenty sixth week of pregnancy. Thanks for bringing this to my notice..
B.Saikumar
From India, Mumbai
Dear Anshu, The woman employee is entitled to leave as per Section 9 of the Maternity Benefit Act 1961 read with Section 3,5 of Medical Termination of Pregnancy Act 1971. The Section 9 of MB Act reads as under:
"9. Leave for miscarriage, etc. - In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be her medical termination of pregnancy"
From the above provision, it is obvious the scope for leave is not restricted to 26 weeks of pregnancy but has wider amplitude and covers even other termination of pregnancy on medical grounds.
Although Section 3 of the MTP Act prescibes a limit of 20 weeks of pregnancy for legally terminating it but Section 5 states that the limit of length of pregnancy would not be attracted where the termination of pregnancy is done to save the life of the pregnant woman.
I beleve this to be one such case where the pregnancy was terminated in 7th month. So accordingly the employee would be entitled to six weeks of paid leave. Otherwise, it would lead to a piquant situation like in case of still born child and the pregnancy is terminated at a late stage beyong 26 weeks and the employee is denied maternity benefit. KK
From India, Bhopal
"9. Leave for miscarriage, etc. - In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be her medical termination of pregnancy"
From the above provision, it is obvious the scope for leave is not restricted to 26 weeks of pregnancy but has wider amplitude and covers even other termination of pregnancy on medical grounds.
Although Section 3 of the MTP Act prescibes a limit of 20 weeks of pregnancy for legally terminating it but Section 5 states that the limit of length of pregnancy would not be attracted where the termination of pregnancy is done to save the life of the pregnant woman.
I beleve this to be one such case where the pregnancy was terminated in 7th month. So accordingly the employee would be entitled to six weeks of paid leave. Otherwise, it would lead to a piquant situation like in case of still born child and the pregnancy is terminated at a late stage beyong 26 weeks and the employee is denied maternity benefit. KK
From India, Bhopal
Dear friend,
It may be necessary to examine the pertinent issues under ESI Act (no mention under what act the queriest is covered) & Maternity Act, Factories Act to have proper clarity. However relevant provisions are extracted here which may add some information pertained to this:
-----------
MATERNITY BENEFIT LAW
Definition of maternity benefit
L.9.1. Maternity benefit consists of periodical payments in case of confinement or miscarriage or
sickness arising out of pregnancy, confinement, premature birth of child or miscarriage, to an insured
woman being certified to be eligible for such payments by an authority specified in this behalf by the
Regulations [Section 46(1)(b)].
L.9.2. Certain terms used in the foregoing para need to be clearly understood as follows :-
(i) Periodical Payments: The payments to be made in respect of maternity benefit are periodical
but the periods at which they are to be made are not fixed. Further, payments relating to this
benefit cannot be commuted into a lump-sum.
(ii) “CONFINEMENT” has been defined in sub-section (3) of Section 2 of the Act as “labour
resulting in the issue of a living child, or labour after twenty-six weeks of pregnancy resulting
in the issue of a child whether alive or dead”. In other words, if labour results in the issue of a
still-born child before the expiry of 26 weeks of pregnancy, it will not be considered as
confinement. On the other hand, if the still-born child is delivered after 26 weeks of
pregnancy, it will be considered as confinement. Also, the issue of a living child has to be
deemed confinement in any case.
(iii) “MISCARRIAGE” has been defined in sub-Section (14-B) of Section 2 of the Act to mean
“expulsion of the contents of a pregnant uterus at any period prior to or during the twenty sixth
week of pregnancy but does not include any miscarriage, the causing of which is
punishable under the Indian Penal Code.”
(iv) Who is an ‘Insured Woman”? The term “insured woman” has not been defined in the
----------------------
Duration and eligibility for miscarriage or medical termination of pregnancy
L.9.5.1. The opening words “An insured woman who is qualified to claim maternity benefit in
accordance with sub-rule (1)” used in sub-rule (3) of Rule 56 ibid imply that for determining title to
maternity benefit in case of miscarriage under the Sub-Rule, the benefit period in which the event of
miscarriage takes place is relevant. If contributions in respect of the insured woman were payable for not
less than 70 days in the two contribution periods immediately preceding the benefit period in which the
miscarriage occurs, she will be entitled to maternity benefit for all days on which she does not work for
remuneration during six weeks immediately following the date of miscarriage, at the maternity benefit rate.
The period of 6 weeks for which maternity benefit is payable for miscarriage under the above provision
may be in one spell or more, but it must be within the range of 6 weeks from the date immediately
following the date of miscarriage.
L.9.5.2. In addition to cases of natural abortion, cases of voluntary or induced abortion coming
within the scope of Medical Termination of Pregnancy Act, read with the definition of miscarriage under
Section 2(14-B) of the Act automatically qualify the insured woman for maternity benefit for miscarriage
as provided under Rule 56 (3) ibid subject to fulfilment of other conditions. Legal opinion obtained in this
regard is reproduced below for guidance “Under Section 50 (3)1, maternity benefit is permissible for
miscarriage as defined in Section 2 (14-B), so long as it is not caused in the circumstances which constitute
an offence under Indian Penal Code. It does not make any difference for the purpose of Section 50 read
with Section 2 (14-B) whether the miscarriage is natural or caused voluntarily, so long as it is not an
1 Now Central Rule 56 (3)
--------------------
Claim for miscarriage or after confinement
L.9.12.1. Under Regulation 89, every insured woman claiming maternity benefit for miscarriage
shall, within 30 days of the date of the miscarriage, and every insured woman claiming maternity benefit
after confinement, shall submit to the appropriate office by post or otherwise a claim for maternity benefit
in form 19 together with a certificate of confinement or miscarriage in form 18 given in accordance with
these regulations.
L.9.12.2. In other words, an insured woman claiming maternity benefit for miscarriage must
submit to her Branch Office claim for maternity benefit in Form 19, accompanied by a certificate of
miscarriage, within 30 days of the date of miscarriage. However, Regional Directors have been delegated
power to relax the time limit of 30 days as provided in Regulation 89 up to a period of six months.
L.9.12.3. Regulation 89 quoted above also speaks of another important matter: claim for
maternity benefit after confinement. For this type of claim, no time-limit has been laid down. In such
cases, the time-limit for submission of claim for maternity benefit after confinement will be as stated in
Explanation (a) below sub-section (1A) of Section 77 of the ESI Act. As for the issue of certificate, though
there is no time limit in the regulations to obtain a certificate of confinement in cases where maternity
benefit is claimed after confinement, it is in the interest of the insured woman to obtain certificate of
confinement as early as possible after her confinement because delay in approaching the Insurance Medical
Officer may result in disappearance of symptoms of recent child-birth (See also paragraph L.9.15)
---------------
E. Sickness arising out of pregnancy, confinement, miscarriage
P.9.14.1. To claim maternity benefit for an additional month for sickness arising out of pregnancy,
confinement, premature birth of child or miscarriage, the insured woman would submit the following:–
(i) a claim for benefit in new form 9 (after scoring out portions not relevant), together with –
(ii) the appropriate medical certificate in new form 7 as first, intermediate or final certificate, as
the case may be.
P.9.14.2. Whenever such a claim is received, the claims clerk will scrutinise the certificate in the
same manner as applicable to certificates of sickness/temporary disablement. In addition, he will also
check whether the IMO/IMP has clearly indicated the sickness being due to pregnancy, confinement,
premature birth of child or miscarriage. These certificates should also be received within time-limits laid
down in Regulation 64.
------------------
This Act may be called the Maternity Benefit Act, 1961.
2. Application of Act
1[(1) It applies, in the first instance, -
(a) To every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrain, acrobatic and other performances;
(b) To every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:]
-------------
(h) “Maternity benefit’ means the payment referred to in sub-section (1) of section 5;
(j) “Miscarriage” means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code (45 of 1860);
9. Leave for miscarriage, etc
1Leave for miscarriage, etc. In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy].
——————–
1. Subs. by Act 29 of 1995, sec.4 (w.e.f 1-2-1996).
----------
10. Leave for illness arising out of pregnancy, delivery, premature birth of child, miscarriage, medical termination of pregnancy or tubectomy operation
A woman suffering from illness arising out of pregnancy, delivery, premature birth of child 1[miscarriage, medical termination of pregnancy or tubectomy operation] shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.
——————–
1. Subs. by Act 29 of 1995, sec.6, for “or miscarriage” (w.e.f 1-2-1996).
(l) “Prescribed” means prescribed by rules made under this Act;
-------
Section 4 in The Maternity Benefit Act, 1961
4. Employment of, or work by, women prohibited during certain period.-
(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.
(2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.
(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub- section (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.
(4) The period referred to in sub- section (3) shall be--
(a) the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;
(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.
Also refer the discussion took place in this link:
Maternity Benefit Act - central govt.. CiteLegal Page 2
From India, Bangalore
It may be necessary to examine the pertinent issues under ESI Act (no mention under what act the queriest is covered) & Maternity Act, Factories Act to have proper clarity. However relevant provisions are extracted here which may add some information pertained to this:
-----------
MATERNITY BENEFIT LAW
Definition of maternity benefit
L.9.1. Maternity benefit consists of periodical payments in case of confinement or miscarriage or
sickness arising out of pregnancy, confinement, premature birth of child or miscarriage, to an insured
woman being certified to be eligible for such payments by an authority specified in this behalf by the
Regulations [Section 46(1)(b)].
L.9.2. Certain terms used in the foregoing para need to be clearly understood as follows :-
(i) Periodical Payments: The payments to be made in respect of maternity benefit are periodical
but the periods at which they are to be made are not fixed. Further, payments relating to this
benefit cannot be commuted into a lump-sum.
(ii) “CONFINEMENT” has been defined in sub-section (3) of Section 2 of the Act as “labour
resulting in the issue of a living child, or labour after twenty-six weeks of pregnancy resulting
in the issue of a child whether alive or dead”. In other words, if labour results in the issue of a
still-born child before the expiry of 26 weeks of pregnancy, it will not be considered as
confinement. On the other hand, if the still-born child is delivered after 26 weeks of
pregnancy, it will be considered as confinement. Also, the issue of a living child has to be
deemed confinement in any case.
(iii) “MISCARRIAGE” has been defined in sub-Section (14-B) of Section 2 of the Act to mean
“expulsion of the contents of a pregnant uterus at any period prior to or during the twenty sixth
week of pregnancy but does not include any miscarriage, the causing of which is
punishable under the Indian Penal Code.”
(iv) Who is an ‘Insured Woman”? The term “insured woman” has not been defined in the
----------------------
Duration and eligibility for miscarriage or medical termination of pregnancy
L.9.5.1. The opening words “An insured woman who is qualified to claim maternity benefit in
accordance with sub-rule (1)” used in sub-rule (3) of Rule 56 ibid imply that for determining title to
maternity benefit in case of miscarriage under the Sub-Rule, the benefit period in which the event of
miscarriage takes place is relevant. If contributions in respect of the insured woman were payable for not
less than 70 days in the two contribution periods immediately preceding the benefit period in which the
miscarriage occurs, she will be entitled to maternity benefit for all days on which she does not work for
remuneration during six weeks immediately following the date of miscarriage, at the maternity benefit rate.
The period of 6 weeks for which maternity benefit is payable for miscarriage under the above provision
may be in one spell or more, but it must be within the range of 6 weeks from the date immediately
following the date of miscarriage.
L.9.5.2. In addition to cases of natural abortion, cases of voluntary or induced abortion coming
within the scope of Medical Termination of Pregnancy Act, read with the definition of miscarriage under
Section 2(14-B) of the Act automatically qualify the insured woman for maternity benefit for miscarriage
as provided under Rule 56 (3) ibid subject to fulfilment of other conditions. Legal opinion obtained in this
regard is reproduced below for guidance “Under Section 50 (3)1, maternity benefit is permissible for
miscarriage as defined in Section 2 (14-B), so long as it is not caused in the circumstances which constitute
an offence under Indian Penal Code. It does not make any difference for the purpose of Section 50 read
with Section 2 (14-B) whether the miscarriage is natural or caused voluntarily, so long as it is not an
1 Now Central Rule 56 (3)
--------------------
Claim for miscarriage or after confinement
L.9.12.1. Under Regulation 89, every insured woman claiming maternity benefit for miscarriage
shall, within 30 days of the date of the miscarriage, and every insured woman claiming maternity benefit
after confinement, shall submit to the appropriate office by post or otherwise a claim for maternity benefit
in form 19 together with a certificate of confinement or miscarriage in form 18 given in accordance with
these regulations.
L.9.12.2. In other words, an insured woman claiming maternity benefit for miscarriage must
submit to her Branch Office claim for maternity benefit in Form 19, accompanied by a certificate of
miscarriage, within 30 days of the date of miscarriage. However, Regional Directors have been delegated
power to relax the time limit of 30 days as provided in Regulation 89 up to a period of six months.
L.9.12.3. Regulation 89 quoted above also speaks of another important matter: claim for
maternity benefit after confinement. For this type of claim, no time-limit has been laid down. In such
cases, the time-limit for submission of claim for maternity benefit after confinement will be as stated in
Explanation (a) below sub-section (1A) of Section 77 of the ESI Act. As for the issue of certificate, though
there is no time limit in the regulations to obtain a certificate of confinement in cases where maternity
benefit is claimed after confinement, it is in the interest of the insured woman to obtain certificate of
confinement as early as possible after her confinement because delay in approaching the Insurance Medical
Officer may result in disappearance of symptoms of recent child-birth (See also paragraph L.9.15)
---------------
E. Sickness arising out of pregnancy, confinement, miscarriage
P.9.14.1. To claim maternity benefit for an additional month for sickness arising out of pregnancy,
confinement, premature birth of child or miscarriage, the insured woman would submit the following:–
(i) a claim for benefit in new form 9 (after scoring out portions not relevant), together with –
(ii) the appropriate medical certificate in new form 7 as first, intermediate or final certificate, as
the case may be.
P.9.14.2. Whenever such a claim is received, the claims clerk will scrutinise the certificate in the
same manner as applicable to certificates of sickness/temporary disablement. In addition, he will also
check whether the IMO/IMP has clearly indicated the sickness being due to pregnancy, confinement,
premature birth of child or miscarriage. These certificates should also be received within time-limits laid
down in Regulation 64.
------------------
This Act may be called the Maternity Benefit Act, 1961.
2. Application of Act
1[(1) It applies, in the first instance, -
(a) To every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrain, acrobatic and other performances;
(b) To every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:]
-------------
(h) “Maternity benefit’ means the payment referred to in sub-section (1) of section 5;
(j) “Miscarriage” means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code (45 of 1860);
9. Leave for miscarriage, etc
1Leave for miscarriage, etc. In case of miscarriage or medical termination of pregnancy, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage or, as the case may be, her medical termination of pregnancy].
——————–
1. Subs. by Act 29 of 1995, sec.4 (w.e.f 1-2-1996).
----------
10. Leave for illness arising out of pregnancy, delivery, premature birth of child, miscarriage, medical termination of pregnancy or tubectomy operation
A woman suffering from illness arising out of pregnancy, delivery, premature birth of child 1[miscarriage, medical termination of pregnancy or tubectomy operation] shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.
——————–
1. Subs. by Act 29 of 1995, sec.6, for “or miscarriage” (w.e.f 1-2-1996).
(l) “Prescribed” means prescribed by rules made under this Act;
-------
Section 4 in The Maternity Benefit Act, 1961
4. Employment of, or work by, women prohibited during certain period.-
(1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.
(2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery or her miscarriage.
(3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub- section (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health.
(4) The period referred to in sub- section (3) shall be--
(a) the period of one month immediately preceding the period of six weeks, before the date of her expected delivery;
(b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.
Also refer the discussion took place in this link:
Maternity Benefit Act - central govt.. CiteLegal Page 2
From India, Bangalore
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