Maternity leave rights in India: 26 weeks, pay, job protection and crèche under the Code on Social Security, 2020

Maternity benefit under the Code on Social Security, 2020 — an overview

The Maternity Benefit Act, 1961 was replaced by the Code on Social Security, 2020 on 21 November 2025. Section 164 of the Code repealed it along with eight other labour laws. Maternity rights for working women now sit in Chapter VI of the Code (sections 59 to 72).

The core rights will feel familiar: paid leave, protection from dismissal, nursing breaks and crèche access. What has changed is the law they come from and the section numbers. If your HR policy or offer letter still quotes the 1961 Act, ask HR to confirm how it applies your rights under the Code.

Who do the maternity rules apply to?

Chapter VI applies to women employees in establishments covered by the Code. The points that matter most:

• You must have worked for your employer for at least 80 days in the 12 months before your expected date of delivery (section 60(2))
• Your workplace must be one the Code's maternity rules cover — if you are unsure, ask HR in writing
• If you are covered by ESI, your maternity benefit usually comes from ESIC, which continues under the Code

Self-employed women are not covered, because there is no employer to pay the benefit. Government employees often have their own leave rules, which can be more generous.

How many weeks of maternity leave are you entitled to in India?

Under the Code on Social Security, 2020 you get 26 weeks of paid maternity leave, of which up to 8 weeks can be before delivery. A woman with two or more surviving children gets 12 weeks, of which up to 6 can be before delivery. Adoptive and commissioning mothers get 12 weeks.

The entitlement depends on how many surviving children you have, and on whether you gave birth, adopted or became a mother through surrogacy:

How to split the 26 weeks

Up to 8 weeks of the 26 can be taken before delivery, and the rest after. If you take the full 8 weeks before, 18 weeks remain for after the birth. Your employer cannot make you work in the 6 weeks immediately after delivery (section 59). Many women take only a few weeks before delivery to keep more time for recovery and caring for the baby.

Stillbirth

If you have a stillbirth, ask HR in writing how your maternity benefit applies. Do not accept a shorter leave, or no leave, without getting advice first.

Who is eligible for maternity leave in India?

You are eligible if you have worked for your employer for at least 80 days in the 12 months before your expected date of delivery. The Code does not limit maternity benefit to permanent staff, so check your eligibility against the 80-day rule, not your job title.

To qualify for maternity benefit, you must have worked for at least 80 days in the 12 months immediately before your expected date of delivery (section 60(2) of the Code).

What counts toward the 80 days?

• ✓ Days you worked for your employer in the 12 months before your expected delivery date
• ✓ Ask HR how paid leave, weekly offs and holidays were counted, and get your attendance record in writing

80 days is roughly 12 weeks, so the rule can cover women who joined an employer fairly recently before becoming pregnant.

Is maternity leave available for contractual and temporary employees in India?

Yes, if you meet the conditions. The Code's maternity benefit rules turn on the 80-day work condition, not on whether you are permanent. If you are on a contract, temporary or fixed-term role and have worked 80 days in the 12 months before your expected delivery date, ask for maternity benefit in writing and get advice if it is refused.

Many employers assume maternity benefit is only for permanent staff. The test in the Code is the 80-day work condition. If you are on a contract, a fixed-term role or a temporary assignment and you meet it, ask for maternity benefit in writing. If you are refused because of your contract type, keep the refusal and get advice.

Is maternity leave fully paid in India?

Yes. You are paid maternity benefit for your leave, worked out on your wages. Under the Code, wages means basic pay, dearness allowance and retaining allowance, with allowances above 50% of total pay added back. If you are covered by ESI, your maternity benefit usually comes from ESIC instead of your employer.

Maternity leave is paid leave. Your maternity benefit is worked out on your wages for the days of maternity leave:

What counts as "wages" for maternity pay?

This is the same definition of wages the Code uses for gratuity and provident fund. If your pay has a small basic and large allowances, the 50% rule can increase what counts as wages.

ESI-covered employees

If you are covered by Employees' State Insurance (ESI), your maternity benefit usually comes from ESIC rather than your employer. ESIC continues under the Code on Social Security, 2020, and ESI has its own conditions for maternity benefit — check them with HR or your ESI branch office.

Medical bonus

If your employer does not provide free pre-natal and post-natal care, you are entitled to a medical bonus of ₹3,500, or such amount as the government notifies (section 64). This is paid on top of your maternity benefit.

Can an employer dismiss a woman during maternity leave in India?

No. Section 68 of the Code on Social Security, 2020 makes it unlawful to dismiss or discharge a woman during her absence on maternity leave. If this happens to you, you can appeal within 60 days, and you can complain to the Inspector-cum-Facilitator.

Section 68 of the Code is the main job protection rule. It means:

• Your employer cannot dismiss or discharge you during your absence on maternity leave
• If you are dismissed or discharged, you can appeal within 60 days
• You can also complain to the Inspector-cum-Facilitator (section 72)

Keep every document: your pregnancy notice, your leave approval, any termination letter and messages from HR. Dates matter, and 60 days passes quickly.

Being sidelined or demoted during leave

A pay cut, demotion, change of role or loss of benefits while you are on maternity leave can be challenged, even if you were not formally dismissed. Note down your role, responsibilities and pay before you go on leave, so you can show what changed. Raise any change with HR in writing and get advice.

Can a pregnant woman be denied maternity leave if she is fired before going on leave?

Firing a pregnant woman to avoid paying maternity benefit can be challenged. Section 68 protects you during maternity leave, and the timing of a dismissal just before your leave is strong evidence. Keep your pregnancy notice and the termination letter, complain to the Inspector-cum-Facilitator, and get legal advice quickly.

Some employers try to end a pregnant woman's job just before her leave starts, to avoid paying 26 weeks of benefit. How close the dismissal came to your pregnancy notice is important evidence. Write down when you told your employer, when the termination came and what reasons were given, then get legal advice on reinstatement and back wages.

Complaints and penalties

The Code on Social Security, 2020 has penalties for employers who break its rules. To start the process, complain to the Inspector-cum-Facilitator for your area (section 72). If you were dismissed or discharged, file your appeal within 60 days as well.

What are the crèche and nursing break rights under the Code on Social Security, 2020?

Establishments with 50 or more employees must provide a crèche, and you must be allowed four visits a day (section 67). Until your child is 15 months old, you are also entitled to two nursing breaks a day (section 66).

Crèche facility — section 67

Every establishment with 50 or more employees must provide a crèche. Key points:

• You must be allowed to visit the crèche four times a day
• Your employer must explain your maternity benefits to you in writing when you are appointed
• If your workplace has 50 or more employees and no crèche, raise it with HR in writing and, if nothing changes, complain to the Inspector-cum-Facilitator

Nursing breaks — section 66

After you return to work, you are entitled to two nursing breaks a day until your child is 15 months old. Many employers overlook this simply because they don't know about it, so ask for it in writing.

Work-from-home option after maternity leave

Under section 60(5) of the Code, if the nature of your work allows it, you may work from home after your maternity benefit ends, on terms agreed between you and your employer.

Key limits: it is not automatic — both sides must agree. It depends on the nature of your work. And it applies after your maternity leave, not in place of it.

If your role can be done remotely, make a formal request and get any arrangement you agree documented in writing.

Special situations — adoptive, surrogate, miscarriage, and more

Adoptive mothers

A woman who legally adopts a child is entitled to 12 weeks of maternity benefit (section 60(4)). The law used to limit this to adoption of a child under 3 months old. On 17 March 2026, the Supreme Court struck down that age condition in Hamsaanandini Nanduri v Union of India (2026 INSC 246), so an adoptive mother is entitled to 12 weeks whatever the age of the child.

Commissioning (surrogate) mothers

A commissioning mother — a biological mother who uses her egg to create an embryo implanted in another woman — is also entitled to 12 weeks of maternity benefit (section 60(4)).

What are the maternity benefits available for miscarriage or stillbirth?

After a miscarriage or medical termination of pregnancy you get 6 weeks of leave with maternity pay, and 2 weeks after a tubectomy. Illness arising from pregnancy, delivery, premature birth, miscarriage or tubectomy gets up to 1 month more. After a stillbirth, ask HR in writing how your maternity benefit applies, and get advice if it is refused.

Section 65 of the Code gives leave with maternity pay after a miscarriage or medical termination of pregnancy (6 weeks) and after a tubectomy (2 weeks). You will usually need a medical certificate. Employers sometimes treat miscarriage leave as sick leave or unpaid leave — it is a separate entitlement.

Illness arising from pregnancy

If you are ill because of pregnancy, delivery, premature birth, miscarriage or tubectomy, you are entitled to up to 1 month of extra leave with maternity pay (section 65), on top of the leave above. Keep your medical certificate.

Government schemes and additional support

Pradhan Mantri Matru Vandana Yojana (PMMVY)

Separately from your employer's duties, the central government runs PMMVY, a scheme that pays cash assistance directly into the bank accounts of eligible pregnant women and new mothers. Check the current amounts and conditions at your local anganwadi centre before you apply.

ESI maternity benefits

Women covered under Employees' State Insurance (ESI) receive maternity benefit from ESIC rather than from the employer. ESIC continues under the Code on Social Security, 2020. Check your eligibility and the rate of payment with your ESI branch office.

Employer obligations — checklist

Under Chapter VI of the Code on Social Security, 2020, your employer must:

Maternity leave — questions people actually ask

Official sources

• Ministry of Labour and Employment — the labour codes, including the Code on Social Security, 2020
• India Code — official repository of Indian Bare Acts

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