Eligibility for Maternity Benefit in case of adoption of child

According to Section 5(4), a woman is allowed maternity leave of 12 weeks only if the adopted child is below 3 months of age. If a woman adopts a child who is more than 3 months of age, she is not considered for maternity leave at all.

My query is about the eligibility of 80 days.

1) If a woman who joined the Organization two months back and adopts a child will be eligible for 12 weeks of maternity leave? If no,

2) Can she apply for maternity leave after acquiring eligibility status in terms of working days?

Experts kindly suggest.

As per section 5 (4) of the Maternity Benefit Act,1961 ( as per the 2017 amendment ), in the case of legal adoption of a child below 3 months of age, the cause of action for claiming the maternity benefit of 12 weeks arises only on the actual date of handing over the child to the adopting mother.

Therefore, if on the date of handing over, the adopting mother has completed 80 days of service in the establishment, she is eligible to claim maternity benefit. It implies that her eligibility has to be determined with reference to the date of handing over of the child and not the date of adoption.

In this particular case, the total service rendered is 4 years 9 months, and 6 days undisputedly for calculating the gratuity. Since he has not completed 5 years of continuous service, he is not eligible for gratuity. There is some diverse interpretation based on the Madras HC judgment, but that is a particular case and it does not mean that the normal practice of 5 years has deviated.

Dr Kamlesh Agrawal
Mumbai

The above post is related to a query on gratuity asked by someone in another post and inadvertently is linked to this post.