Under India’s maternity law as updated by the Code on Social Security 2020 (effective November 21, 2025), you’re entitled to 26 weeks of fully paid leave for your first two children — one of the longest statutory maternity leaves in Asia. The law also covers adoptive mothers, commissioning mothers, and (with recent Supreme Court clarification) imposes no age limit on the child being adopted.
Knowing your rights, however, is only half the battle. Enforcement gaps, misclassified employment, and deliberate employer non-compliance mean many women in India never see the leave they’re legally owed. This guide covers what the law actually says, who gets it, and what to do when an employer refuses.
How Much Leave Are You Entitled To?
The Code on Social Security 2020 — which consolidated the old Maternity Benefit Act 1961 and its 2017 amendment — sets these entitlements:
- First and second child: 26 weeks of paid leave. You can take up to 8 weeks before your expected delivery date; the rest after.
- Third child onwards: 12 weeks.
- Adoptive mothers (child under three months at time of adoption): 12 weeks from the date of adoption. As of a March 17, 2026 Supreme Court ruling, the three-month age cap itself has been struck down as unconstitutional — more on that below.
- Commissioning mothers (surrogacy arrangements where the woman commissions the pregnancy): 12 weeks from the birth of the child.
- Pregnancy complications or miscarriage: 6 weeks of paid leave.
26 weeks is not a soft target or an industry best practice — it’s the legal floor. An employer who offers you only 3 months (about 12–13 weeks) for a first or second child is in violation of the law, not being generous.
Who Qualifies?
Two eligibility conditions must be met:
1. You must have worked for at least 80 days in the 12 months immediately before your expected delivery date. Sundays, holidays, and compensatory offs count toward the 80-day threshold. If you’ve been at a job for at least three months full-time, you almost certainly qualify.
2. Your employer must have 10 or more employees. The law applies to factories, mines, plantations, shops, and “every other establishment” employing 10+ people. If your employer claims the law doesn’t apply because the business is “too small,” verify the actual headcount — workers on contract and probation count.
One important clarification for contract and temporary workers: courts have consistently held that if you meet the 80-day threshold, your employment category (permanent, contractual, daily wage) doesn’t disqualify you. You’re entitled to maternity benefits.
Your Pay During Maternity Leave
You receive your full average wage — calculated as the average of your daily wage over the three months immediately before leave begins. This means bonus, dearness allowance, and other regular components are typically included in the calculation. Your employer cannot reduce your maternity leave pay by excluding variable components that were a regular part of your compensation.
If your employer doesn’t provide pre-natal or post-natal medical care, they must also pay a medical bonus of Rs. 3,500 as a one-time payment. This is often left unpaid without a word — ask for it specifically if no employer-sponsored medical care was provided.
The 2026 Supreme Court Ruling: Adoptive Mothers Win
On March 17, 2026, the Supreme Court of India struck down the three-month age limit that had previously restricted adoptive mothers’ maternity leave. Under the old reading of Section 60(4) of the Code, if you adopted a child older than three months, you weren’t entitled to maternity leave. The Court held this provision unconstitutional — it discriminated between biological and adoptive mothers without rational justification.
The practical effect: if you adopt a child of any age and you’re the primary caregiver, you are now entitled to maternity leave. The 12-week entitlement stands regardless of the child’s age at adoption.
This ruling matters especially for women who were denied leave for adopting older children. If your employer denied maternity leave citing the three-month age cap after March 17, 2026, that denial is now unlawful.
Employer Obligations Beyond Leave Duration
The law requires more than just granting leave. These obligations are often overlooked:
Crèche facility: Any establishment employing 50 or more employees must provide a crèche (childcare facility) either on-site or in a nearby location. You are entitled to make up to four daily visits to the crèche during your working hours. If your employer has 50+ employees and no crèche arrangement exists, that’s a compliance failure — not just a convenience gap.
No strenuous work from 10 weeks before delivery: From 10 weeks prior to your expected delivery date, you cannot be required to do strenuous work, stand for extended periods, or carry out tasks that could cause physical harm. Request a modified duty role during this period — your employer must accommodate it.
Written notice of rights: Employers are required to notify you in writing, at the time of appointment, that maternity benefits exist. Many don’t bother. The absence of this notice doesn’t eliminate your rights, but it’s worth knowing whether your employer has met this obligation.
No dismissal during maternity leave: Section 12 of the Code on Social Security prohibits terminating a woman during maternity leave or because of her pregnancy. If you are dismissed during this period, the employer faces mandatory reinstatement, full back pay, damages, and potential criminal prosecution. This protection is absolute — there is no business-reason exception.
Work from home option post-leave: Where the nature of work permits, employers can allow a woman to work from home during or after maternity leave, by mutual agreement. This isn’t a right you can demand unilaterally, but it is an option your employer is legally permitted (and encouraged) to offer.
ESIC and Maternity Benefits
If you’re covered by the Employees’ State Insurance (ESI) scheme — which applies if your gross salary is ₹21,000 or below and your employer is covered under ESIC — your maternity benefit comes from ESIC, not from your employer directly. ESIC-covered women receive the same 26-week benefit (for the first two children), paid by the corporation at the rate of your average daily wage.
Importantly, if ESIC covers you, the employer is not double-paying: ESIC pays the maternity wage, and your employer’s direct obligation under the Code is typically treated as satisfied via the ESIC coverage. If you’re unsure whether you’re ESIC-covered, ask your HR team for your ESIC number or check the ESIC portal at esic.gov.in.
The Coverage Gap: Who’s Still Left Out
The 26-week entitlement is real, but its reach has clear limits.
Unorganised sector workers: Agriculture, domestic work, small roadside establishments, and informal daily-wage roles — which employ the majority of working women in India — remain largely outside the law’s effective reach. While the Code theoretically extends to all establishments with 10+ workers, enforcement in the unorganised sector is near-zero.
Gig platform workers: The Code on Social Security 2020 introduced “gig workers” and “platform workers” as new categories entitled to social security. Draft rules from December 2025 proposed eligibility after 90–120 days of continuous engagement with a platform, with aggregators contributing to a social security fund that would cover maternity benefits. As of June 2026, the specific maternity scheme for gig workers has not been notified — the regulatory rollout is ongoing. If you work on a delivery, ride-sharing, or home-services platform, maternity benefits under the gig worker framework are not yet available, though this is expected to change within 2026.
Contractual workers on short-term engagements: Even in the formal sector, some employers use repeated 3-month contracts to prevent workers from crossing the 80-day threshold. If this is happening to you — same employer, same role, contracts that reset every few months — this likely constitutes a violation of the spirit of the law. Document your actual days of continuous service.
What To Do If Your Employer Refuses
If you’re entitled to maternity leave and your employer denies it, delays payment, or threatens your employment:
- Document everything in writing. Send an email formally requesting maternity leave with your expected delivery date. Keep copies of all replies.
- File a complaint with the Labour Commissioner. Every district has a Labour Commissioner’s office. Maternity benefit complaints are handled under the Code on Social Security. You can file in person or, in many states, via the Shram Suvidha portal.
- Approach the court. The High Court can be approached via a writ petition if an employer ignores a Labour Commissioner’s order.
- Women’s Helpline 181: For immediate guidance or if you’re facing workplace harassment related to your pregnancy, the national women’s helpline offers support and can direct you to local legal aid.
One thing to know: bringing a complaint often triggers fear of retaliation. Termination in response to a maternity complaint is itself a separate violation — treat it as additional evidence, not a dead end.
Frequently Asked Questions
Q: Can my employer ask me about my pregnancy during hiring?
A: No. Asking about pregnancy during recruitment and using the answer to screen candidates is discriminatory under Indian labour law. If this is happening to you in a job application process, you are not legally obliged to disclose your pregnancy status.
Q: What if I work at a startup with 10–15 employees?
A: The law applies to establishments with 10 or more employees. Headcount includes contractual, part-time, and probationary staff. If your employer genuinely has 10+ workers, you’re covered.
Q: Does maternity leave count toward my annual leave entitlement?
A: No. Maternity leave is separate from and cannot be deducted from your earned leave, casual leave, or sick leave balance.
Q: My contract says maternity leave is only 12 weeks. Is that valid?
A: No. A contract cannot reduce statutory rights below what the law provides. A clause offering only 12 weeks for a first or second child is unenforceable — you’re still entitled to 26 weeks.
Q: I was on a fixed-term contract that expired during my maternity leave. Did my employment end?
A: If the contract expired while you were on maternity leave, this is a legally contested area. Courts have generally held that maternity leave protection under Section 12 applies even to fixed-term employees for the duration of the leave. Seek legal advice specific to your situation before accepting any separation.
Related Guides on ePeople India
Find Your Next Step With ePeople India
At ePeople India, we connect women jobseekers with employers who understand your rights and respect them — with zero placement fees, ever. Whether you’re looking for your next role or need to understand what a job offer actually means for you:
→ Find Jobs — Browse openings across sectors in India
→ Post a Job — Employers: list your vacancies and find qualified candidates
Reviewed by a human editor before publishing. Srikanth is an employment compliance researcher with 8+ years covering Indian labour law and workforce policy.
