What are the maternity and paternity leave entitlements under Indian law?

Key Takeaways

Maternity leave: 26 weeks for the first two children, 12 weeks for subsequent births/adoptions, with full salary.
Paternity leave: No federal mandate, but voluntary policies (5–15 days) are growing in progressive sectors.
Compliance focus: Ensure crèche facilities for 50+ employees and protect job security post-leave.
Penalties: Non-compliance risks fines up to ₹5,000 and imprisonment under the Maternity Benefit Act.
Wisemonk’s role: End-to-end management of leave policies, payroll, and legal compliance.

At Wisemonk, we’ve helped countless international employers navigate India’s maternity and paternity leave regulations while ensuring compliance and fostering supportive workplaces. Below, we break down the legal requirements, entitlements, and practical considerations for global companies managing remote teams in India.

1. Maternity Leave Entitlements Under the Maternity Benefit Act, 1961

India’s maternity leave framework is governed by the Maternity Benefit Act, 1961, which was last amended in 2017 to expand protections for working mothers. The law applies to:

Establishments with 10+ employees, including factories, mines, plantations, shops, and IT/ITES companies.
Women employees in organized sectors, including contractual, casual, and part-time workers.

Key Eligibility Criteria

Service requirement: The employee must have worked for at least 80 days in the 12 months preceding the expected delivery date.
Wage ceiling: No income cap—applies to all women regardless of salary.

Example: A software engineer in Bengaluru employed for 3 months (but meeting the 80-day threshold) qualifies for full maternity benefits.

2. Types of Maternity Leave and Durations

2. Types of Maternity Leave and Durations
Leave Type	Duration	Conditions
Standard Leave	26 weeks	For the first two children (up to 8 weeks pre-delivery + 18 weeks post-delivery).
Third Child or Later	12 weeks	6 weeks pre-delivery + 6 weeks post-delivery.
Adoption Leave	12 weeks	For mothers adopting a child below 3 months (starts when the child is handed over).
Surrogacy (Commissioning Mothers)	12 weeks	From the date the child is handed to the biological mother.
Miscarriage/Medical Termination	6 weeks	From the date of miscarriage or termination (requires medical certification).
Tubectomy Leave	2 weeks	Post-sterilization surgery.
Illness-Related Leave	Up to 1 month	For complications arising from pregnancy, delivery, or miscarriage.

Example: A marketing manager expecting her second child takes 8 weeks pre-delivery and 18 weeks post-delivery, totaling 26 weeks of paid leave.

3. Salary and Benefits During Maternity Leave

Full wage payment: Employers must pay the last drawn average salary during the leave period.
Job security: Employees cannot be terminated during maternity leave and must return to the same or equivalent role.
Health insurance: Medical expenses related to pregnancy/delivery are covered under ESI (if applicable) or corporate health plans.

Table 1: Salary Calculation Example

Table 1: Salary Calculation Example
Employee	Monthly Salary	Maternity Leave Duration	Total Payment Received
Senior Developer	₹1,20,000	26 weeks (6.5 months)	₹7,80,000

4. Additional Protections and Facilities

A. Crèche Facility

Mandatory for employers with 50+ employees: A crèche must be provided within a reasonable distance.
Visits allowed: Up to 4 times daily, including rest intervals.

B. Work-from-Home Options

Post-maternity leave, employees can request work-from-home arrangements if job roles permit (e.g., IT, content roles).
Example: A data analyst transitions to remote work for 3 months after returning from leave.

C. Nursing Breaks

Two paid breaks per day until the child turns 15 months old.

5. Paternity Leave in India: Current Landscape

Unlike maternity leave, India lacks a federal mandate for paternity leave. However:

Voluntary policies: Progressive companies (e.g., Tata, Infosys) offer 5–15 days of paid paternity leave.
Public sector: Central government employees receive 15 days of paternity leave.
State initiatives:
- Maharashtra: Proposes 10 days of leave under the Maharashtra Shop and Establishment Act.
- Kerala: Offers 15 days for government employees.

Key Challenge: Only ~18% of Indian companies provide paternity leave, creating disparities in caregiving responsibilities.

6. Compliance Challenges for Employers

A. Tracking Eligibility

Complex calculations: Ensuring 80-day employment threshold is met, especially for contractual staff.
Documentation: Managing medical certificates and adoption/surrogacy paperwork.

B. Cost Management

Financial burden: Small businesses may struggle with 6+ months of salary payments.
Temporary replacements: Hiring freelancers or redistributing workloads adds operational costs.

C. Legal Risks

Penalties: Non-compliance can result in 3–12 months imprisonment or fines up to ₹5,000.
Lawsuits: Employees may file grievances under the Industrial Disputes Act, 1947 for wrongful termination.

Example: A Mumbai-based startup faced a ₹2 lakh fine for denying maternity leave to a contractual employee.

7. Recent Updates (2025)

Extended WFH flexibility: Post-leave remote work options now extendable to 1 year in IT sectors.
Surrogacy recognition: Enhanced documentation requirements for commissioning mothers.
Crèche subsidies: Government reimburses 50% of crèche setup costs for SMEs under the POSHAN Abhiyaan.

8. How Wisemonk Simplifies Compliance

We help global employers streamline maternity/paternity leave management through:

Automated Eligibility Checks: Track employee tenure, salary, and leave balances in real time.
Payroll Integration: Calculate and disburse maternity payments without disrupting payroll cycles.
Policy Customization: Design paternity leave policies aligned with global ESG standards.
Legal Support: Handle ESIC/EPFO audits and dispute resolution.

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