Is denying maternity leave legal in India? No: an eligible woman in a covered establishment is entitled to 26 weeks of fully paid leave for her first two children and 12 weeks from the third, an employer can’t dismiss her for taking it or ask her to waive it, and refusing the benefit is a criminal offence. Since 21 November 2025 the entitlement sits in the Code on Social Security, 2020, which replaced the Maternity Benefit Act, 1961, so many guides still quote the old penalties. This is general information, not legal advice.
Your Entitlement at a Glance
- First two children: 26 weeks of paid leave
- Third child onwards: 12 weeks
- Coverage: establishments with 10 or more employees, according to Wisemonk
- Job protection: dismissal during maternity leave is prohibited
- Waiver: an employer can’t make you give the leave up
- Governing law: Chapter VI of the Code on Social Security, 2020, in force since 21 November 2025
Which Law Applies Now
The statute changed in late 2025.
- The four Labour Codes came into force on 21 November 2025, so the entitlement now flows from the Code on Social Security, 2020, according to iPleaders
- Maternity benefit is governed by Chapter VI, Sections 59 to 72, which repeals and re-enacts the 1961 Act, according to the same source
- The Code retained all maternity provisions, according to Careers Salary Hub, and the core obligations carry forward unchanged, according to Kaam
- Some pages still describe the 1961 Act as the governing law, so check which statute a guide is citing
What a Woman Is Owed
The basic package is generous.
- Up to 26 weeks of fully paid leave for the first two children, and 12 weeks thereafter, according to iPleaders
- Further protections cover adoption, surrogacy, miscarriage, medical bonus, nursing breaks and job security
- Crèche facilities are required for employers with 50 or more employees, according to Kaam
- A work-from-home option can be exercised after the leave period ends, according to Wikipedia’s note on the 2017 amendment
Who Pays
It depends on your coverage.
- Under the 1961 Act, an employee covered by the ESI Act with wages up to ₹21,000 a month receives the benefit from the ESI Corporation rather than the employer, according to Omnivoo
- Other women are paid by the employer at full wage replacement, according to Kaam
- Gig, platform and unorganised-sector women are protected through government welfare schemes rather than employer-paid leave, according to iPleaders
Can the Employer Say No?
Not lawfully.
- Maternity leave cannot legally be denied to an eligible employee, according to GreytHR
- Employers cannot ask you to forfeit leave, accept reduced pay or waive any benefit, according to Careers Salary Hub
- The Act’s provisions were effective notwithstanding any agreement or contract to the contrary, so you can’t waive your rights, according to Omnivoo, which cites Section 27 of the old Act
Dismissal Is Also Barred
Job security is part of the right.
- Section 12 of the 1961 Act prohibited dismissal during maternity leave or on account of pregnancy-related absence, and any such dismissal is illegal and void, according to Omnivoo
- The only exception described there is dismissal for gross misconduct, with written reasons and a right of appeal
- Under the Code, an employer can’t dismiss, discharge or give notice of dismissal during maternity leave, and doing so is a criminal offence, according to Kaam
The Penalties
The figures depend on which law the guide uses.
- Under the 1961 Act, failing to pay maternity benefit or dismissing a woman during or on account of her absence was punishable with imprisonment of not less than three months and up to one year and a fine of ₹2,000 to ₹5,000, according to the Act’s text on Indian Kanoon
- India Briefing describes imprisonment up to one year and fines up to ₹6,000, which doesn’t match the Act’s text
- Under Section 133 of the Code on Social Security, an employer who fails to pay the benefit can be punished with imprisonment of up to six months or a fine, according to iPleaders, whose text cuts off before the amount
- Wisemonk says the Code raised the stakes sharply compared with the 1961 Act’s maximum fine of ₹5,000, but I couldn’t verify the new fine, so check the Code
- Courts may also direct that the benefit be paid to the woman out of the fine recovered, according to Omnivoo
Contract Workers
The right isn’t limited to permanent staff.
- The 1961 Act’s benefits apply to women who have worked the qualifying days in the preceding 12 months without distinguishing between contract and permanent staff, according to India Briefing, which states 180 days while other guides say 80, so check the eligibility rule
- Section 12 prohibits termination during the maternity period for contract workers too, according to the same source
The Third Child
The Supreme Court corrected a misreading.
- On 23 May 2025, the Supreme Court clarified that the 2017 amendment does not bar women with more than two children from availing maternity leave, and only limits the duration, according to India Briefing
- The case concerned a Tamil Nadu government schoolteacher on her third pregnancy
- On 25 August 2026, Tamil Nadu granted its state government employees 365 days of leave for a third child, according to Wisemonk
Adoptive Mothers
A 2026 ruling widened the net.
- On 17 March 2026, the Supreme Court extended 12-week adoption leave to all adoptive mothers, removing the three-month child-age cap, according to Wisemonk and Employer Records
- The Court struck down the age restriction as unconstitutional, according to Employer Records
- The Supreme Court has anchored the maternity right in Article 21, according to iPleaders
Paternity Leave
It’s not required of private employers.
- The Code mandates paid maternity leave but no equivalent paternity entitlement for private-sector employees, though many employers offer it voluntarily, according to Wisemonk
- The Supreme Court urged the central government in March 2026 to recognise paternity leave as a social security benefit, according to the same source
What If Your Employer Refuses
A practical route exists.
- Apply in writing and keep a copy, with your expected delivery date and medical proof
- Quote the Code’s Chapter VI and your coverage
- Ask for written reasons if the request is refused
- Complain to the labour inspector or the labour department
- Approach the ESI office if you’re covered by ESI
- Consult a labour lawyer, since a criminal complaint and a civil claim can both be available
What Employers Should Do
Compliance is simple in principle.
- Grant leave and pay in full on time
- Never dismiss, demote or alter terms because of pregnancy
- Provide crèche facilities where the headcount requires it
- Offer work from home where the nature of work permits and the woman requests it
- Keep records of notices and payments
Edge Cases
A few situations cause questions.
- Small establishments below the 10-employee threshold fall outside the statutory entitlement, though other laws or contracts may help
- Probationers and fixed-term employees should be treated as eligible if they meet the qualifying service rule
- Miscarriage and surrogacy have their own provisions under the Code, which these sources list without detail
Where the Sources Disagree
Some points aren’t aligned.
- Which statute governs, since some still cite the 1961 Act
- The penalty amounts under the Code
- The qualifying days, 80 or 180
- Many are HR and legal-blog sources, so read Chapter VI of the Code for the exact text
FAQs
Q1. Is denying maternity leave legal in India?
No. Eligible women in covered establishments are entitled to paid leave, and refusing it, or dismissing a woman for taking it, is a criminal offence.
Q2. How many weeks of maternity leave is a woman entitled to?
26 weeks of fully paid leave for the first two children and 12 weeks from the third, under the Code on Social Security, 2020.
Q3. Can an employer fire me during maternity leave?
No. Dismissal during maternity leave is prohibited and void, except in limited cases of gross misconduct with written reasons and a right of appeal.
Q4. Are contract workers entitled to maternity leave?
Yes, if they meet the qualifying service rule. The law doesn’t distinguish between contract and permanent employees.
Q5. Can an employer ask me to waive maternity benefits?
No. The law applies despite any contract to the contrary, so a waiver or reduced pay condition is unlawful.
