Maternity leave and pay in India
Reviewed by Mellow Editorial Team, HR & payroll content team
Maternity leave in India entitles eligible women employees to 26 weeks of fully paid leave for the first two children, reducing to 12 weeks for the third child onwards, with pay calculated on average daily wages. Here is what employers need to understand to stay compliant and support their staff fairly.
The law that governs maternity leave
The Maternity Benefit Act, 1961, as amended in 2017, is the primary legislation. It applies to establishments with ten or more employees. The four Labour Codes that came into force in 2025 consolidate several older labour laws, but the core maternity benefit provisions carry forward and remain enforceable.
To be eligible, a woman must have worked for the employer for at least 80 days in the twelve months preceding her expected date of delivery. Part-time, contractual and casual workers can qualify if they meet this threshold.
How much leave is available
First or second child: 26 weeks of paid maternity leave. Up to eight weeks can be taken before the expected delivery date; the remaining weeks follow delivery.
Third child or beyond: 12 weeks of paid leave, with up to six weeks available before delivery.
Adoptive and commissioning mothers: A woman who adopts a child below three months of age, or a commissioning mother (in a surrogacy arrangement), is entitled to 12 weeks of maternity benefit from the date the child is handed over.
Miscarriage or medical termination: Six weeks of paid leave, taken from the day following the miscarriage.
Tubectomy: Two weeks of paid leave immediately after the operation.
Illness arising from pregnancy or delivery: An additional one month of leave on medical certification, beyond the standard entitlement.
How maternity pay is calculated
Pay during maternity leave is calculated at the average daily wage. The average is typically derived from the wages earned in the preceding three months. The employer pays this directly; it is not a government reimbursement scheme, except for qualifying establishments under the ESIC (Employees' State Insurance Corporation), where ESI covers the benefit for employees who fall under the wage threshold for ESI applicability.
For ESI-covered employees, the employer's obligation to pay maternity benefit is discharged through the ESI scheme. For employees above the ESI wage threshold, the employer bears the full cost.
A practical point: wages for this purpose generally include basic pay and dearness allowance. Check whether your employment contracts and offer letters are clear on what "wages" includes, because ambiguity here creates disputes.
Work from home and creche entitlements
The 2017 amendment added two provisions that many employers overlook.
Work from home: After the maternity leave period ends, an employer may allow a woman to work from home if the nature of her work permits it. The terms and duration are to be mutually agreed. This is discretionary on the employer's part but must be offered as an option where the role allows it.
Creche facility: Any establishment with 50 or more employees must provide a creche, either on-premises or within a prescribed distance. Women employees are entitled to four visits to the creche during the working day, including the rest interval. If you have reached this headcount, non-compliance is a direct legal exposure.
Employer obligations and documentation
No dismissal during absence: Discharging or dismissing a woman on account of maternity absence is prohibited and can attract penalties under the Act. A show-cause notice or termination issued during this period is legally vulnerable, even if framed around performance or redundancy.
Notice and communication: A woman intending to take maternity leave must give written notice to her employer, stating the date from which she will be absent. The employer acknowledges and confirms the entitlement in writing. Keep these on file.
Payroll treatment: Maternity pay is still treated as salary for income tax purposes and must flow through payroll correctly. TDS obligations apply in the normal course if the employee's annual income crosses the taxable threshold under the applicable slab. The pay must appear in Form 16 and your Form 24Q quarterly filings.
State-specific rules: Some states have rules or standing orders that extend protections beyond the central Act — for example, on the number of employees at which the law kicks in, or on additional benefits. If your workforce spans multiple states, verify the applicable state rules.
What good practice looks like
Beyond legal minimums, the way you handle maternity leave communicates a great deal to your workforce. Keeping communication open — confirming entitlements in writing, discussing return-to-work plans without pressure, and processing pay without delay — prevents most disputes before they begin. Where roles genuinely permit remote work, offering it post-leave costs little and is now an explicit part of the law. Getting the documentation and payroll treatment right from the start is far easier than correcting errors after an employee has raised a grievance.
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