Maternity Leave Rights in India (2026 Guide)

What changed in 2026 (read this first)

Are you covered? Who the law applies to

Maternity protection in India runs on three parallel tracks, and the first thing to establish is which one you fall under, because the paying authority and the exact rulebook differ.

Private-sector women under the Code on Social Security

Chapter VI applies to every establishment that is a factory, mine or plantation (including one belonging to the Government), and to every shop or establishment employing ten or more persons. The threshold of ten employees is what brings most private offices, retail chains and service businesses within the net. In this track, the employer pays the maternity benefit directly.

Women covered by the Employees’ State Insurance (ESI) scheme

Where a woman is insured under the ESI scheme (broadly, employees earning up to the ESI wage ceiling in covered establishments), her maternity benefit is paid by the Employees’ State Insurance Corporation (ESIC) from the insurance fund, not by the employer. Two features distinguish this route. First, the qualifying condition is a contribution test, not the 80-day work test: the insured woman must have contributed for at least 70 days in the two consecutive contribution periods immediately preceding her confinement. Second, the benefit is paid in cash at 100% of the average daily wage for the period of absence.

Government employees

Central and State Government staff are governed not by the Code but by their service rules, which for the Centre means the Central Civil Services (Leave) Rules. These are more generous (180 days) and are dealt with separately below.

Eligibility: the 80-day rule

Under Section 60 of the Code on Social Security, a woman qualifies for maternity benefit if she has actually worked for at least 80 days in the twelve months immediately preceding her expected date of delivery. Days on which she was laid off, or on paid holiday, count towards the 80 days.

The benefit is payable at the rate of the average daily wage for the period of her actual absence, that is, the average of the wages earned in the three calendar months preceding the date she goes on leave. Crucially, this is full pay, not a reduced allowance. There is no minimum length-of-service requirement beyond the 80 working days, so a woman who joined recently but has clocked the qualifying days is covered.

How much leave you actually get

The length of paid leave depends on how many surviving children the woman already has, and on how she becomes a mother. Two clarifications trip people up. First, the 26-week entitlement is tied to having fewer than two surviving children; from the third child onward the paid leave is 12 weeks. But, following K. Umadevi, a woman is never disqualified altogether merely because of the number of her children; only the duration changes. Second, the leave for miscarriage, tubectomy and pregnancy-related illness (Section 65) is separate from the main maternity leave and is claimed on medical proof. The table below sets out every category recognised in 2026.

Beyond leave: what employers must also provide

Paid leave is only the core of the entitlement. The Code on Social Security carries forward a set of supporting protections that employers frequently overlook.

Medical bonus

Under Section 64, a woman entitled to maternity benefit is also entitled to a medical bonus of Rs. 3,500 from her employer where no free pre-natal and post-natal care is provided, with the Central Government empowered to raise this figure by notification.

Nursing breaks

Section 66 entitles a woman who returns to duty after delivery to two nursing breaks each working day, in addition to her rest interval, until the child is fifteen months old.

Crèche facility

Every establishment employing fifty or more employees must maintain a crèche within the prescribed distance, and must permit the mother four visits a day to the crèche, including her rest interval (Section 67). Employers must also inform every woman, at the time of appointment, of the maternity benefits available to her.

Work from home

Where the nature of a woman’s work allows her to work from home, the employer may permit her to do so after she has availed the maternity benefit, on terms mutually agreed. This is an enabling provision, a route to a softer return to work, rather than an absolute right.

Job protection during maternity absence

Under Section 68 of the Code, the bar carried over from Section 12 of the 1961 Act, an employer cannot dismiss or discharge a woman during her maternity absence, nor vary her conditions of service to her disadvantage on that account, nor give notice of discharge expiring during that period. A dismissal in contravention does not deprive her of the maternity benefit or medical bonus, save in cases of gross misconduct for which the benefit may be forfeited by written order. It is also unlawful for an employer to knowingly employ a woman in the six weeks immediately after delivery or miscarriage, or to require her to do work that is arduous or likely to interfere with pregnancy during a defined pre-delivery window.

Adoptive and commissioning (surrogacy) mothers in 2026

The 2017 amendment first recognised that motherhood is not only biological, but it did so narrowly. An adopting mother got 12 weeks of leave only if the adopted child was below three months of age, and a commissioning mother (the biological mother who uses a surrogate) got 12 weeks from the date the child was handed over. That three-month cut-off effectively excluded most adoptions, because children are rarely placed for adoption that young.

On 17 March 2026, in Hamsaanandini Nanduri v. Union of India (2026 INSC 246), a Bench of Justices J.B. Pardiwala and R. Mahadevan struck down the age restriction in Section 60(4) of the Code as arbitrary and violative of Articles 14 and 21. The Court reasoned that the concept of family cannot be confined to biological ties, that adoption is an equally valid way of forming a family, and that pegging leave to the infant’s age bore no rational connection to the object of maternity protection, which extends to caregiving, bonding, and the welfare of the child, not merely physical recovery from childbirth.

Government employees: a more generous regime

Women in central government service are governed by the Central Civil Services (Leave) Rules, which are considerably more liberal than the Code. The main entitlements are:

• Maternity leave of 180 days for a woman government servant with fewer than two surviving children.
• Child Care Leave (CCL) of up to 730 days across the entire service, available to women employees and to single male employees, to care for their two eldest surviving children (for needs such as education or illness).
• Leave for miscarriage or MTP of up to 45 days, and paternity leave of 15 days for male government servants.

The Central Civil Services (Leave) Amendment Rules, 2024 (notified 18 June 2024) modernised these rules for surrogacy. In a surrogacy arrangement, where either the commissioning mother or the surrogate mother is a government servant with fewer than two surviving children, maternity leave of 180 days is now available to the commissioning mother, and the surrogate mother too may be granted leave. A commissioning father who is a government servant may take 15 days of paternity leave, and Child Care Leave was extended to commissioning mothers.

State government employees

Women employed by State Governments are governed by their respective State service rules rather than the central CCS Rules. Most States broadly mirror the central position, commonly 180 days of maternity leave and Child Care Leave for up to two children, but the precise duration, the number of children covered, and the treatment of surrogacy and adoption vary from State to State. A State-government employee should therefore check her own State’s leave rules, because a benefit available to a central-government colleague is not automatically identical in her service.

Gig, platform and unorganised women workers

One of the stated ambitions of the Code on Social Security, 2020 is to widen the safety net beyond the traditional employer-employee relationship. The Code creates a framework for gig workers, platform workers and workers in the unorganised sector, the delivery riders, cab drivers, home-based and domestic workers who were historically outside maternity law altogether.

For these categories, maternity protection is delivered not as an employer-paid entitlement but through welfare schemes framed by the Central and State Governments, funded in part through contributions from aggregators and a dedicated social-security fund. The Code contemplates schemes covering maternity benefit, life and disability cover, and health, among other things, with eligibility and quantum set by the scheme rather than fixed in the statute.

The practical caveat in 2026 is that this part of the Code is being operationalised in stages. Registration of unorganised, gig and platform workers, for example on the e-Shram database, is the gateway to these benefits, and the maternity component depends on the specific scheme notified for a worker’s category and State. In other words, the right is now recognised in the parent law; the delivery mechanism is still being built out through subordinate rules. Women in these categories should register on the relevant portal and track the schemes notified for them.

How to claim your maternity benefit: a step-by-step guide

Knowing the entitlement is one thing; securing it on time is another. The route differs slightly depending on whether you are paid by your employer under the Code or by ESIC, but the core steps are the same.

Step 1: Give written notice to your employer

Serve the notice of claim (Section 62) in writing, stating the date from which you will be absent and, where relevant, naming a nominee to receive the amount in the event of your death. Do this well before you intend to stop working, and keep a dated acknowledgement.

Step 2: Time your leave

You may begin the leave up to eight weeks before the expected date of delivery (six weeks from the third child), or take the whole block after delivery. The choice is yours, subject to the maximum pre-delivery cap.

Step 3: Collect the medical proof

Keep a certificate of pregnancy and expected date of delivery, and later the proof of delivery. For a miscarriage, medical termination or tubectomy claim, you will need the corresponding medical certificate, since those are separate entitlements under Section 65.

Step 4: Receive payment on time

For the pre-delivery period, the employer must pay the maternity benefit in advance on production of the proof of pregnancy; the amount for the post-delivery period is payable within 48 hours of producing proof of delivery. The medical bonus of Rs. 3,500 is payable along with it.

Step 5 (ESI route): claim through your ESI branch

If you are an insured woman, you claim from ESIC rather than your employer. Submit the prescribed maternity-benefit claim with the medical certificates issued by the ESI dispensary or insurance medical officer, and ESIC pays the cash benefit directly into your account.

Step 6: On your return to work

You are entitled to two nursing breaks a day until the child is fifteen months old, four visits a day to the crèche where one is maintained, and, if the nature of your work allows, you may request to work from home on mutually agreed terms.

Maternity leave in special situations

During probation

Being on probation does not, by itself, defeat the right. What matters is the qualifying condition, 80 days worked or 70 days’ ESI contribution, not the label of the appointment. A probationer who has completed the qualifying days is entitled to the benefit, and the bar on dismissal during maternity absence applies to her as well.

Fixed-term and contractual roles

As the Kerala High Court held in Rasitha C.H., contractual status is no ground to deny maternity benefit. Where an employer allows a fixed-term contract to lapse specifically to avoid paying it, courts have treated that as a device to defeat the right. A genuine, unrelated end of a fixed term is a different matter; the facts decide.

Notice period and resignation

A woman who is otherwise eligible does not lose accrued maternity benefit merely because she later resigns; the entitlement crystallises once the qualifying conditions are met. Nor can an employer force a woman to forgo maternity leave as a condition of serving notice.

Complications, premature birth and multiple births

The additional one month of leave for illness arising out of pregnancy, delivery, premature birth, miscarriage or medical termination is available on medical certification, over and above the main entitlement. The law fixes leave by the event of maternity, not the number of babies, so the 26-week block is not multiplied for twins, though the illness provision can extend it where the mother’s health requires.

Extending leave beyond the paid entitlement

Where a woman needs longer than the paid weeks, she may apply for other available leave, earned leave, or Child Care Leave in government service, or unpaid leave under her employer’s policy. This is discretionary and governed by the employer’s rules rather than a statutory right, so it should be agreed in writing.

Your rights if maternity benefit is denied

Denials still happen, through ignorance of the new Code, deliberate cost-cutting, or the mistaken belief that contractual or third-child mothers are excluded. Your options:

1. Put the claim in writing. Give the employer the notice of claim (Section 62) stating the date from which you will be absent, and keep proof of delivery.
2. Escalate to the labour authorities. The Code is enforced through Inspector-cum-Facilitators; a complaint can be filed with the jurisdictional authority, and disputes carry an appellate route. Wrongful deprivation of maternity benefit is an offence attracting penalty.
3. Approach the constitutional courts. Because maternity benefit is now recognised as a facet of Article 21, a woman, including a contractual or muster-roll worker, can seek relief by way of a writ petition where an employer or State instrumentality denies the right.

What it costs an employer to get this wrong

Maternity leave in India: myths vs facts

Several outdated beliefs still cost women their rightful leave. Here are the most common, corrected against the 2026 position.

Landmark judgments shaping the right

Four decisions map the journey of maternity leave from a statutory benefit to a constitutional right, and three more fill in the detail.

Read together, these rulings mean an employer defending a denial can no longer hide behind a literal reading of eligibility clauses: the courts will test the refusal against the woman’s dignity, her reproductive autonomy and the child’s welfare.

Three more decisions worth knowing

Rasitha C.H. v. State of Kerala (Kerala High Court, 2018). A contractually engaged assistant professor was refused maternity benefit on the ground that she was not a regular employee. The Court held that maternity benefit is not merely a statutory or contractual entitlement but a benefit attached to the dignity of a woman, and that contractual status is no reason to deny it.

Preeti Singh v. State of Uttar Pradesh (Allahabad High Court, 2021). The employer relied on a service rule requiring a minimum two-year gap between successive maternity leaves. The Court held the two-year-gap condition was not mandatory and could not be used to defeat a rightful claim.

Deepika Singh v. Central Administrative Tribunal (2022). A woman was denied leave for her first biological child because she had two step-children from her husband’s earlier marriage. The Supreme Court held that familial relationships take many forms and that the leave could not be defeated on that ground, reasoning that fed directly into the reproductive-rights framing later adopted in Umadevi.

How India compares globally

At 26 weeks of fully paid leave, India sits among the more generous countries in the world for statutory maternity leave, well above the ILO Maternity Protection Convention minimum of 14 weeks, and ahead of many developed economies on duration. After the 2017 increase, India was widely reported as offering one of the longest paid maternity entitlements among major economies.

The headline figure comes with a structural critique. In most countries with long maternity leave, the cost is borne wholly or partly by the State or a social-insurance fund; in India, outside the ESI net, the employer bears the full wage cost. Some economists argue this creates a disincentive to hire women of childbearing age, and that the absence of a statutory paternity-leave counterpart in the private sector concentrates the “motherhood penalty” on women. The Supreme Court’s 2026 nudge to legislate paternity leave, and the Code’s move towards scheme-based, fund-based delivery for gig and unorganised workers, are early steps towards spreading that cost more evenly.

Frequently asked questions

Is maternity leave in India 26 weeks in 2026?

Yes. A woman with fewer than two surviving children is entitled to 26 weeks of paid maternity leave under the Code on Social Security, 2020, of which up to 8 weeks may be taken before the expected date of delivery. From the third child onward, the paid leave is 12 weeks.

Can I get maternity leave for my third child?

Yes. Following K. Umadevi v. Government of Tamil Nadu (2025), there is no cap on the number of children for claiming maternity benefit; only the duration changes, 12 weeks instead of 26 for a third or subsequent child, subject to the surviving-children count.

How many days must I have worked to qualify?

You must have actually worked for at least 80 days in the twelve months immediately preceding your expected date of delivery. There is no separate minimum length-of-service requirement.

Are contractual and daily-wage women entitled to maternity leave?

Yes. The Supreme Court in Municipal Corporation of Delhi v. Female Workers (Muster Roll) held that casual, daily-wage and contractual women workers are entitled to maternity benefit; the entitlement does not depend on the label of the engagement.

What maternity leave do adoptive mothers get in 2026?

Twelve weeks, and, after Hamsaanandini Nanduri v. Union of India (17 March 2026), irrespective of the adopted child’s age. The earlier “below three months” restriction has been struck down.

Does maternity leave apply to small companies?

The Code applies to every factory, mine and plantation, and to shops and establishments employing ten or more persons. Very small establishments below the ten-employee threshold may fall outside the Code, though other benefits such as ESI, where applicable, may still apply.

Can my employer dismiss me while I am on maternity leave?

No. It is unlawful to dismiss or discharge a woman during her maternity absence, or to serve notice of discharge expiring during that period, or to vary her service conditions to her disadvantage on that account, except in cases of proven gross misconduct.

How much maternity leave do government employees get?

Central Government women employees get 180 days of maternity leave for up to two surviving children, plus Child Care Leave of up to 730 days over their service. Since the 2024 amendment, commissioning and surrogate mothers in government service also receive 180 days.

How long do nursing breaks continue after I return to work?

You are entitled to two nursing breaks a day, in addition to your usual rest interval, until your child is fifteen months old.

Do gig and platform workers get maternity benefit?

The Code on Social Security, 2020 recognises maternity protection for gig, platform and unorganised-sector women through government welfare schemes rather than employer-paid leave. The benefit depends on the specific scheme notified for your category and on registering on the relevant portal, and is being rolled out in stages.

Who pays maternity benefit, my employer or ESI?

If you are insured under the ESI scheme, the benefit is paid in cash by ESIC, subject to 70 days’ contribution in the two preceding contribution periods. If you are above the ESI wage ceiling, your employer pays it directly under the Code on Social Security, subject to the 80-day work rule. Government employees are paid by the Government under their own service rules.

Conclusion

In 2026, maternity leave in India is both broader and more secure than at any point before. The Code on Social Security, 2020 has consolidated the law, the 26-week entitlement endures, and the Supreme Court has anchored the right in Article 21 while dismantling arbitrary limits on third children and on adoptive mothers. For working women, the practical takeaway is that the number of children, the mode of becoming a mother, and the nature of employment are no longer easy grounds for refusal. For employers, the message is equally clear: policies drafted around the 1961 Act need a 2026 rewrite, covering the correct thresholds, full-wage payment, crèche and nursing obligations, and the expanded rights of adoptive and commissioning mothers, or they risk both penalty and constitutional challenge.

References

Case law