Navigating Maternity Leave Challenges: Can Late Marriage Certification Affect Eligibility?

Background Information

My colleague was appointed under compassionate grounds after the death of her husband, who was a government employee, leaving behind a girl child. She had a girl child from her first husband and later got pregnant, giving birth to a male baby. Subsequently, she legally married the father of her newborn son two months after giving birth.

Seeking Guidance on Leave Entitlements

I am seeking information regarding maternity and paternity leaves for my colleague's current situation. Her second husband, who is the father of her first child and her newborn, is also a government employee. However, there is a concern that she may not be eligible for maternity leave due to producing the marriage certificate at a later stage according to the authorities. We are facing challenges in this matter and seek guidance to resolve this issue. Your assistance would be greatly appreciated.

Hi,

Your colleague is eligible for maternity leave provided she had taken maternity leave while in service and also fulfills the eligibility criteria as stipulated by the Maternity Benefit Act.

Eligibility for Maternity Leave

Please confirm the following:
a) Date of appointment of the woman employee
b) When did she get pregnant? At the time of delivery, did she complete more than 80 days of service?

Your query pertains more to childbirth that is out of wedlock. However, it should be noted that eligibility for maternity leave is not linked to marriage. A spinster, if she becomes pregnant, is also eligible for maternity leave. In the case at hand, the woman is a widow. However, her marital status does not affect her eligibility for maternity leave.

Thanks,
Dinesh Divekar

Dear Dibakar,

Marital status is not a criterion for claiming maternity benefits under the Maternity Benefit Act, 1961. What is important is whether the employee has rendered the minimum length of qualifying service just before the date of the cause of action for the claim only.

I certainly agree with all members here that the lady would be eligible for maternity leave irrespective of her marital status, as long as she qualifies based on the service duration. However, I would like to clarify my understanding here. In your note, it is mentioned that she gave birth to a male infant outside wedlock and then got married to the same man, who was the biological father of the infant, becoming the legal father only after 2 months.

Did the lady actually take her leave at the time of childbirth, and is she now requesting those leaves to be converted to maternity leave on a backdated basis? Under the Maternity Benefit Act, it is mandatory that for 6 weeks after childbirth, female employees are not supposed to work, even if they choose to. So, if she was required to return to work within the 6-week period, then you may be facing a much bigger problem here.

Mr. Dutta,

In my view, the lady is eligible for maternity leave. The marriage certificate cannot be a criterion to deny. Whether the lady has provided information of pregnancy to her employer or not is a matter. But you need to check with the state Act and Rules of Assam as well as the service rules and conditions of the state.

The 2nd husband of the lady is eligible for paternity leave provided his marriage is his first one.