Maternity leave is one of the most important employee benefits in India — and one of the most misunderstood by both employers and employees. Whether you are an HR professional designing your maternity policy or an employee planning your leave, this guide covers everything you need to know about maternity leave rules in India in 2026.
The Law: Maternity Benefit Act 1961 and the 2017 Amendment
Maternity leave in India is governed by the Maternity Benefit Act, 1961, which was significantly amended in 2017. The key provisions that HR teams and employees need to know are:
Who is covered: The Act applies to all establishments with 10 or more employees — factories, mines, plantations, shops, and establishments. Women employed either directly or through a contractor are covered.
Eligibility: A woman is entitled to maternity benefit if she has worked for at least 80 days in the 12 months preceding her expected date of delivery.
How Many Days of Maternity Leave in India?
26 weeks for women with fewer than two surviving children. This is one of the most generous maternity leave entitlements in the world — longer than the United States, United Kingdom, and most European countries.
12 weeks for women who already have two or more surviving children.
12 weeks for women who adopt a child below the age of 3 months, or for commissioning mothers (women who use a surrogate).
Of the 26 weeks, a maximum of 8 weeks can be taken before the expected date of delivery. The remaining leave is taken after delivery.
Maternity Benefit — Is It Paid Leave?
Yes — maternity leave under the Act is fully paid at the rate of the average daily wage. The employer is responsible for paying the maternity benefit for the entire duration of the leave. This is not optional and cannot be reduced by company policy.
The Crèche Facility Requirement
This is one of the most frequently missed compliance requirements. Under the 2017 Amendment, every establishment with 50 or more employees must provide a crèche (childcare) facility, either on the premises or within a prescribed distance.
The employer must allow the woman to visit the crèche four times during the working day, including the regular rest interval. This applies to all women employees, not just those on maternity leave.
What HR must do: If your organisation has 50 or more employees, confirm whether a crèche facility is in place or whether a registered crèche in the vicinity has been identified and documented. Non-compliance here is a common oversight that surfaces during labour audits.
Work from Home After Maternity Leave
The 2017 Amendment introduced a provision allowing women to work from home after their maternity leave, if the nature of the work permits. The terms of the work-from-home arrangement are to be mutually agreed upon between the employer and the employee.
This is not an absolute right — it applies only where the work can be performed from home — but HR should have a clear written policy on how this is managed to avoid disputes.
Maternity Leave and the New Labour Codes
Under the Social Security Code 2020 (one of the four new Labour Codes being implemented in 2026), the maternity benefit provisions are largely retained from the existing Act. The key changes:
— The Social Security Code consolidates maternity benefit under a unified framework alongside PF, ESI, and gratuity.
— The existing 26-week entitlement and crèche requirements remain in force.
— The Code extends coverage to certain categories of unorganised sector and gig workers, though full implementation for these categories is still being phased in state by state.
What Employers Cannot Do
Dismiss or discharge a woman during maternity leave: An employer cannot dismiss, discharge, or reduce the wages of a woman who is absent on maternity leave. Any such action is illegal and the woman is entitled to claim the full maternity benefit regardless.
Deny maternity benefit on probation: A woman on probation who meets the 80-day eligibility criterion is entitled to maternity benefit. Probationary status does not disqualify an employee from claiming maternity leave.
Make attendance compulsory on the day of delivery: A woman is entitled to leave from the day of delivery. No employer can require attendance or work on that day.
Miscarriage and Medical Termination
In case of miscarriage or medical termination of pregnancy, a woman is entitled to 6 weeks of paid leave, starting from the day of the miscarriage or termination. This entitlement applies regardless of how many children the woman already has.
Tubectomy Leave
Women who undergo a tubectomy operation are entitled to 2 weeks of paid leave from the date of the operation under the Maternity Benefit Act.
HR Compliance Checklist — Maternity Leave
Before an employee goes on maternity leave:
— Confirm the employee meets the 80-day eligibility criterion
— Obtain a certificate from a registered medical practitioner confirming the expected date of delivery
— Document the leave start date and expected return date in writing
— Confirm the maternity benefit payment schedule with payroll
During maternity leave:
— Continue paying maternity benefit at the regular rate
— Do not terminate, demote, or reduce the salary of the employee on leave
— Keep the employee's position or equivalent role available on return
On return from maternity leave:
— Issue a formal return-to-work letter or confirmation
— Discuss work-from-home arrangement if applicable and if the work permits
— Ensure crèche facility access is communicated if applicable
Frequently Asked Questions
Q: Can maternity leave be split — some before and some after delivery?
A: Yes. Of the 26 weeks, up to 8 weeks can be availed before the expected date of delivery and the remaining weeks after delivery. The split is the employee's choice within this limit.
Q: Does maternity leave apply to contract employees?
A: Yes, if the contract employee has worked for at least 80 days in the preceding 12 months. Employment type does not disqualify an employee from maternity benefit.
Q: What if the employee doesn't return after maternity leave?
A: The employee is entitled to the full maternity benefit regardless of whether she returns. An employer cannot withhold maternity pay as a condition of return to work.
Q: Is maternity benefit taxable?
A: No. Maternity benefit received under the Maternity Benefit Act is exempt from income tax under Section 10 of the Income Tax Act.
Q: What is the penalty for non-compliance with the Maternity Benefit Act?
A: Employers who fail to pay maternity benefit or who dismiss a woman during maternity leave can face imprisonment of up to 3 months, a fine, or both, under the Act.
For ready-to-use HR policy templates including maternity leave policies and forms, visit our Stores and Services page.
Related: New Labour Codes India 2026 — What Every HR Professional Must Know
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